Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 2 contracts

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader, Xxxxxxxxxx~~ Xxxxx & ~~Xxxx~~ Xxxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 2 contracts

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, Issuers have obtained Tax Advice to the effect that (1) such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income ~~tax~~ taxation with respect to its net income (including any tax ~~liability~~ imposed under Section 1446 of the Code), other than by operation of Subchapter C of Chapter 63 of the Code, or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (2) any Class B Notes subject to Re-Pricing will be treated as debt for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 2 contracts

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Collateral Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Collateral Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Collateral Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader, Xxxxxxxxxx~~ Xxxxx & ~~Xxxx~~ Xxxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Collateral Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Collateral Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Collateral Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee in order to effect a Re-Pricing.

Appears in 2 contracts

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

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes and with the consent of the Collateral ~~Manager)~~Manager and the U.S. Retention Provider, the ~~Issuers~~ Issuer shall reduce the spread over LIBOR or the ~~Reference Rate (or~~fixed Interest Rate, ~~in the case of any Fixed Rate Notes~~as applicable, ~~the stated rate of interest)~~ with respect to any Class of ~~Re-Pricing Eligible~~ Secured Notes, other than the Class A-1 Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Secured Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing~~. (b)~~ . At least 30 20 days (or such shorter period reasonably acceptable to the Trustee and the Collateral Manager) prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “Re-Pricing Date”), the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer, ) shall deliver a notice in writing (with a copy to the Collateral Manager, the Trustee ~~(who shall promptly deliver a copy of such notice~~ and each Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (ia) specify the proposed Re-Pricing Date and the revised spread over LIBOR or the fixed Interest ~~Rate~~ Rate, as applicable, to be applied with respect to such Class (the “Re-Pricing Rate”); (iib) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (~~iii~~c) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ not more than 5 Business Days ~~prior to the proposed Re-Pricing Date~~after such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such ~~notice~~notice (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to more than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise ~~Notices~~Notices (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to less than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the ~~Issuer~~Issuer (subject to the minimum denomination and applicable procedures of DTC), shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ aggregate principal amount of such Notes together with any accrued and unpaid interest thereon, including any Deferred Interest and any accrued and unpaid interest on such Deferred Interest, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture described in this Section 9.8. The Holder of each ~~Re-Pricing Eligible~~ Secured Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with the provisions of this Indenture described in this Section ~~9.7~~ 9.8 and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a the Majority of the ~~Preferred Shares~~ Subordinated Notes, the Collateral Manager and the ~~Collateral Manager~~U.S. Retention Provider, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date solely to decrease the spread over LIBOR or the ~~Reference Rate (or~~fixed Interest Rate, ~~in the case of any Fixed Rate Notes~~as applicable, ~~the stated rate of interest) applicable~~ with respect to the Re-Priced Class; (ii) the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer~~, has received written commitments to purchase~~ ) confirms in writing that all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred pursuant to clause (c) above; (iii) ~~the~~ each Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of ~~any~~ the additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the Issuer; and (viv) ~~none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of~~ the Issuer ~~under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules~~ has received written advice from Dechert LLP or ~~the EU Risk Retention Requirements as a result~~ an opinion of counsel of nationally recognized standing that (A) such Re-Pricing ~~unless such Person has consented to~~ will not result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (B) such Re-~~Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of~~ Pricing will not result in the Issuer ~~in connection with such Re-Pricing. (e)~~ being subject to U.S. federal income tax on a net basis. If notice has been received by the Trustee from the ~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ Collateral Manager pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by~~ first class mail, postage prepaid, mailed not less than three ~~(3)~~ Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and ~~the~~ each Rating Agency~~. (f)~~ . The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer ~~may~~shall, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 2 contracts

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ Benchmark with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Collateral Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Collateral Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured ~~Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured ~~Notes~~ Debt of the Re-Priced Class, including the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Collateral Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ Benchmark applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion ~~or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Collateral Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Collateral Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Secured Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Collateral Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured ~~Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of either (i) the Collateral Manager with the consent of the Retention Holder or (ii) a Majority of the ~~Preferred Shares (~~Subordinated Notes with the consent of the Collateral ~~Manager)~~Manager and the Retention Holder, the ~~Issuers~~ Issuer shall reduce the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Secured Debt, where such Class of Debt constitutes Re-Pricing Eligible ~~Notes~~ Debt (such ~~reduction~~reduction with respect to any such Class of Debt, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing.in (b) At least ~~30 days~~ 15 Business Days (or such shorter period of time as the Trustee (and each applicable Loan Agent, if applicable), and the Collateral Manager find reasonably acceptable) prior to the Business Day fixed by the Collateral Manager or a Majority of the ~~Preferred Shares~~ Subordinated Notes, as applicable, for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly ~~deliver~~ forward a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral ~~Manager~~ Manager, S&P and Euronext Dublin (so long as any Listed Notes are listed thereon and so long as the ~~Rating Agency~~guidelines of such exchange so require)) and each applicable Loan Agent, if applicable, which notice shall: : (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Reference Rate or range of spreads over the Reference Rate to be applied with respect to such Class (the “Re-Pricing Rate”); ; (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; ~~and~~ and (iii) specify the price at which ~~Secured Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten~~ five (105) Business Days ~~prior to~~ after the ~~proposed Re-Pricing Date~~date of such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly ~~deliver~~ forward a copy of such notice to the consenting Holders of the Re-Priced Class)) and each applicable Loan Agent, if applicable, specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the ~~Trustee~~Trustee (and each applicable Loan Agent, if applicable), the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders.the (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers~~ Issuer and the Trustee (and each applicable Loan Agent, if applicable) shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date ~~solely~~ to decrease the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to~~ for the Re-Priced ~~Class~~Class in accordance with Section 8.1; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) ~~the Rating Agency~~ S&P shall have been notified of such Re-Pricing; (iv) the Issuer has ~~received a~~ obtained written ~~opinion or~~ advice ~~from Cadwalader, Xxxxxxxxxx &~~ of Xxxx Xxxxxxxx LLP or ~~Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP,~~ Dechert LLP or ~~a written~~ an opinion ~~of other tax counsel~~ of nationally recognized ~~standing in the United States~~ U.S. tax counsel experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal ~~income~~ tax with respect to its net income (including any withholding tax liability ~~imposed~~ under Section 1446 of the Code), ) or ~~result in the Issuer being treated as~~ becoming a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) in the case of any Re-Pricing directed by a Majority of the Subordinated Notes, the written consent of the Collateral Manager and the Retention Holder, and in the case of any Re-Pricing directed by the Collateral Manager, the written consent of the Retention Holder, shall have been obtained; (vi) all expenses of the Issuer and the ~~Trustee (including~~ Trustee, along with the fees of the Re-Pricing Intermediary and fees of counsel) , and each applicable Loan Agent, as applicable, incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the ~~Issuer;~~ Issuer and (vivii) ~~none of~~ (A) neither the ~~Issuer, the Collateral Manager, the Retention Holder or~~ Issuer nor any “sponsor” ~~of the Issuer under~~ (as defined in the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing.Retention (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by ~~a Majority of~~ the ~~Preferred Shares~~ Collateral Manager on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the ~~Issuer,~~ Issuer and the Trustee ~~and the Collateral Manager~~ for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured Notes~~ Debt and ~~the Rating Agency.~~S&P. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or the Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Trustee (and each applicable Loan Agent, if applicable) shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture or each applicable Class A-L Loan Agreement, as applicable, and that all conditions precedent thereto have been complied with. The Trustee (and each applicable Loan Agent, as applicable) may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee (and each applicable Loan Agent, as applicable) in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture and Security Agreement (Nuveen Churchill Direct Lending Corp.)

Optional Re-Pricing. (a) On any Business Day after the ~~Non~~Non‑Call Period for any Class of Re-~~Call Period~~Pricing Eligible Debt, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes with the consent of the Collateral Manager), the ~~Issuers shall~~ Issuer may reduce the spread over the Reference Rate and/or fixed interest rate applicable with respect to such Class of Re-Pricing Eligible Debt (~~or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ such reduction with respect to any Class of ~~Re-Pricing Eligible Notes (such reduction~~Debt, a “Re-Pricing” and any such Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any ~~Re-Pricing~~Re‑Pricing, the Collateral Manager on behalf of the Issuer may engage a ~~broker-dealer~~ broker‑dealer (the “~~Re-Pricing~~ Re‑Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such ~~Re-Pricing~~ Re‑Pricing Intermediary shall assist the Issuer in effecting the Re‑Pricing. Each Holder of Re-~~Pricing~~Pricing Eligible Debt, by its acceptance of an interest in such Debt, agrees to cooperate with the Issuer, the Collateral Manager, the Re‑Pricing Intermediary (if any) and the Collateral Trustee in connection with any Re‑Pricing and acknowledges that its Re-Pricing Eligible Debt may be sold or redeemed with or without such Holder’s consent and that the sole alternative to any such Re‑Pricing or redemption is to commit to sell its interest in the Notes of the Re‑Priced Class. In connection with a Re‑Pricing, the Issuer may issue Re-Pricing Replacement Debt, the proceeds of which shall be used to redeem non‑consenting Holders in accordance with Section 9.7(c) (Optional Re‑Pricing). (b) At least ~~30 days~~ 20 Business Days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed ~~Re-Pricing~~ Re‑Pricing (the “~~Re-Pricing~~ Re‑Pricing Date”), the Issuer, or the ~~Re-Pricing~~ Re‑Pricing Intermediary on behalf of the Issuer, shall deliver a notice (the “Re‑Pricing Notice”) in writing (with a copy to the Collateral Manager, the Collateral Trustee ~~(who shall promptly deliver a copy of such notice~~ and the Rating Agency) to each Holder of the proposed ~~Re-Priced Class(es), the Collateral Manager and the Rating Agency)~~Re‑Priced Class, which notice shall: (i) specify the proposed ~~Re-Pricing~~ Re‑Pricing Date and the revised ~~Interest~~ spread over the Reference Rate and/or fixed interest rate (or range of spreads and/or fixed interest rates) to be applied with respect to such Class (the “~~Re-Pricing~~ Re‑Pricing Rate”);, (ii) request each Holder of the ~~Re-Priced~~ Re‑Priced Class consent to ~~approve~~ the proposed ~~Re-Pricing;~~ Re‑Pricing and indicate which Re‑Pricing Rate (or range thereof) they have consented to, and (iii) specify the price (which, for purposes of such Re‑Pricing, shall be the Redemption Price of such Debt) at which Secured ~~Notes~~ Debt of any Holder of the ~~Re-Priced~~ Re‑Priced Class ~~which~~ who does not ~~approve~~ consent to the ~~Re-Pricing~~ Re‑Pricing may be (x) sold and transferred pursuant to Section 9.7(c~~), which,~~ ) (Optional Re‑Pricing) or (y) redeemed with Re‑Pricing Proceeds and all funds available for ~~purposes of~~ such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Datepurpose. (c) In the event any Holders of the ~~Re-Priced~~ Re‑Priced Class do not deliver written consent to the proposed ~~Re-Pricing~~ Re‑Pricing on or before the date that is ~~ten (10)~~ 15 Business Days prior to the proposed ~~Re-Pricing~~ Re‑Pricing Date, the Issuer, or the ~~Re-Pricing~~ Re‑Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the ~~Re-Priced~~ Re‑Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the ~~Re-Priced~~ Re‑Priced Class held by such ~~non-consenting Holders~~non‑consenting Holders (such notice, the “Non‑Consent Notice”), and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the ~~Re-Pricing~~ Re‑Pricing Intermediary if such Holder would like to (A) purchase all or any portion of the ~~Secured Notes~~ Debt of the ~~Re-Priced~~ Re‑Priced Class held by the ~~non~~non‑consenting Holders (such purchase and sale, a “Re‑Pricing Transfer”) and/or (B) purchase Re-~~consenting Holders~~ Pricing Replacement Debt with respect thereto at the price specified in the Re‑Pricing Notice or Non‑Consent Notice, as applicable, and (C) in each case, the Aggregate Outstanding Amount of such Debt and/or Re-Pricing Replacement Debt that it would agree to acquire (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of ~~such notice~~the Non‑Consent Notice. In the event the Issuer shall receive Exercise Notices with respect to ~~more~~ Debt of the Re‑Priced Class in an amount greater than or equal to the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the ~~Re-Priced~~ Re‑Priced Class held by ~~non-consenting~~ non‑consenting Holders, the Issuer, or the ~~Re-Pricing~~ Re‑Pricing Intermediary on behalf of the Issuer, ~~shall cause the sale and transfer~~ may effect Re‑Pricing Transfers of such ~~Secured Notes~~Re-Pricing Eligible Debt or issue Re-Pricing Replacement Debt, as applicable, without further notice to the ~~non-consenting~~ non‑consenting Holders ~~thereof (for settlement~~ thereof, on the ~~Re-Pricing Date)~~ Re‑Pricing Date to the Holders delivering Exercise Notices with respect thereto, pro rata (subject to the applicable Authorized Denomination requirements) based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the ~~Re-Priced~~ Re‑Priced Class held by ~~non-consenting~~ non‑consenting Holders, the Issuer, or the ~~Re-Pricing~~ Re‑Pricing Intermediary on behalf of the Issuer, shall ~~cause the sale and transfer~~ conduct a Re‑Pricing Transfer of such ~~Secured Notes~~Re-Pricing Eligible Debt or issue Re-Pricing Replacement Debt, as applicable, without further notice to the ~~non-consenting~~ non‑consenting Holders thereof, ~~for settlement~~ on the Re‑Pricing Date. Any excess Re-Pricing ~~Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes~~ Eligible Debt of the ~~Re-Priced~~ Re‑Priced Class held by ~~non~~a non‑consenting Holder after giving effect to the Exercise Notices, Re-~~consenting Holders~~ Pricing Replacement Debt and issuance of Re-Pricing Replacement Debt shall be sold ~~(for settlement on the Re-Pricing Date)~~ to ~~one or more transferees~~ a transferee designated by the ~~Re-Pricing~~ Re‑Pricing Intermediary ~~and consented to~~ or by the Collateral Manager on behalf of the Issuer. All Re‑Pricing Transfers and sales of Re-Pricing ~~Eligible Notes~~ Replacement Debt to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price ~~after giving effect on a pro forma basis~~ with respect to ~~all payments to be made pursuant to the Priority of Payments on the~~ such Re-Pricing ~~Date if such date is a Payment Date~~Eligible Debt, and shall be effected only if the related ~~Re-Pricing~~ Re‑Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed ~~Re-Pricing~~ Re‑Pricing unless: (i) ~~with the consent of a Majority of the Preferred Shares and the Collateral Manager,~~ the Issuers and the Collateral Trustee shall have entered into a supplemental ~~indenture,~~ indenture pursuant to Section 8.2(c) (Supplemental Indentures With Consent of Holders of Debt) dated as of the ~~Re-Pricing~~ Re‑Pricing Date ~~solely~~ to ~~decrease~~ modify the spread over the Reference Rate ~~(or~~and/or fixed interest rate applicable to the Re‑Priced Class and/or, in the case of the issuance of Re-Pricing Replacement Debt, to issue such Re-Pricing Replacement Debt and to reflect any ~~Fixed Rate Notes, the stated rate of interest) applicable~~ necessary changes to the ~~Re-Priced Class~~definitions of “Non‑Call Period” or “Redemption Price” of the Re‑Priced Class to be made pursuant to Section 9.7(f) (Optional Re‑Pricing); (ii) based solely on a certification of the ~~Issuer,~~ Re‑Pricing Intermediary or the ~~Re-Pricing Intermediary~~ Collateral Manager (on behalf of the Issuer), ~~has received written commitments to purchase~~ the Collateral Trustee confirms in writing that all ~~Secured Notes~~ Re-Pricing Eligible Debt of the ~~Re-Priced~~ Re‑Priced Class held by ~~non-consenting Holders~~non‑consenting Holders have been sold and transferred or redeemed on the same day; (iii) the Rating Agency shall have been notified of such ~~Re-Pricing~~Re‑Pricing in accordance with Section 14.3 (Notices, etc., to Collateral Trustee, the Loan Agent, the Issuers, the Collateral Manager, the Initial Purchaser, the Collateral Administrator, the Paying Agent, each Hedge Counterparty and the Rating Agency); (iv) ~~the Issuer has received a~~ written ~~opinion or~~ advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or ~~Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx~~ Dechert LLP, or ~~a written~~ an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, in the form and substance satisfactory to the Collateral Manager, is delivered to the Issuer to the effect that ~~such~~ the Re-Pricing will not ~~result in~~ cause the Issuer ~~becoming subject~~ to ~~U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code),~~ be classified as an association or ~~result in the Issuer being treated as~~ a publicly traded ~~partnership~~ partnership, in each case, that is taxable as a corporation for U.S. federal income tax purposes; , or to have any U.S. federal withholding tax liability under Section 1446 of the Code and (v) all due and payable expenses of the Issuer and the Collateral Trustee (including the fees of the ~~Re-Pricing~~ Re‑Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall Re‑Pricing have been paid or shall be adequately provided for (including by application of Section 11.1(a)(i)(N) (Disbursements of Monies from Payment Account), Section 11.1(a)(iii)(B) (Disbursements of Monies from Payment Account) from amounts available in the Supplemental Reserve Account or from the proceeds of ~~any~~ the additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Collateral Trustee ~~from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a ~~Re-Pricing~~ Re‑Pricing shall be given by the Collateral Trustee ~~by email transmission, if available, and~~ (at the direction of the Issuer) by first class mail, postage prepaid, mailed not less than three ~~(3)~~ Business Days prior to the proposed ~~Re-Pricing~~ Re‑Pricing Date, to each Holder of ~~Notes~~ Re-Pricing Eligible Debt of the ~~Re-Priced~~ Re‑Priced Class at the address in the Register (~~and, in the case of Global Notes, delivered by electronic transmission to DTC) (~~with a copy to the Collateral Manager, the Collateral Trustee and the Rating Agency), specifying the applicable ~~Re-Pricing~~ Re‑Pricing Date and ~~Re-Pricing~~ Re‑Pricing Rate. Notice of ~~Re-Pricing~~ Re‑Pricing shall be given by the Collateral Trustee at the expense and direction of the Issuer. Failure to give a notice of ~~Re-Pricing~~Re‑Pricing, or any defect therein, to any Holder of any ~~Re-Priced~~ Re‑Priced Class shall not impair or affect the validity of the ~~Re-Pricing~~ Re‑Pricing or give rise to any claim based upon such failure or defect. Any notice of a ~~Re-Pricing~~ Re‑Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes or the Collateral Manager on or prior to the ~~fourth~~ Business Day prior to the scheduled ~~Re-Pricing~~ Re‑Pricing Date by written notice to the Issuer, the ~~Trustee and~~ Collateral Trustee, the Collateral Manager (if applicable) and the Re‑Pricing Intermediary for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee (at the direction of the Issuer) shall send such notice to the Holders of ~~Secured Notes~~ Re-Pricing Eligible Debt and the Rating Agency. (f) In connection with a Re‑Pricing (x) the Non‑Call Period for the Re‑Priced Class may be extended or imposed from such Re‑Pricing Date at the direction of the Collateral Manager with the consent of a Majority of the Subordinated Notes and the consent of the Holders of the Re-Priced Class that have consented to such Re-Pricing prior to such Re‑Pricing and/or (y) the definition of “Redemption Price” may be revised, pursuant to a supplemental indenture entered into under Section 8.2(c) (Supplemental Indentures With Consent of Holders of Debt), to reflect any agreed upon make‑whole payments for the applicable Re‑Priced Class at the direction of the Collateral Manager with the approval of a Majority of the Subordinated Notes. The Issuer ~~shall~~ will direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the ~~Re-Pricing~~ Re‑Pricing, and the Collateral Trustee ~~shall~~ will have the authority to take such actions as may be directed by the Issuer or the Collateral Manager ~~as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable~~ to effect a ~~Re-Pricing~~Re‑Pricing. In order to give effect to the ~~Re-Pricing~~Re‑Pricing, the Issuer may, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by ~~such~~ non‑consenting Holders and Holders consenting ~~or non-consenting Holder(s). The Trustee shall be entitled~~ to ~~receive,~~ the Re‑Pricing and ~~shall be fully protected in relying upon an Opinion of Counsel stating that~~ otherwise take the ~~Re-Pricing is authorized or permitted~~ actions contemplated by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-PricingSection 9.7 (Optional Re‑Pricing).

Appears in 1 contract

Samples: Indenture (Barings Private Credit Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the ~~Preferred~~ Subordinated SecuritiesPreferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Applicable Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a ““Re-Pricing”” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a ““Re-Priced Class””); provided that the ~~Issuers~~ Applicable Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the ““Re-Pricing Intermediary””) upon the recommendation and subject to the approval of (i) a Majority of the ~~Preferred~~ Subordinated SecuritiesPreferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Supplemental Indenture (Blue Owl Capital Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. The Trustee shall also arrange for such notice to be delivered to Euronext Dublin so long as any Notes are listed thereon and so long as the guidelines of such exchange so require. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Notes, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion ~~or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Secured Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. In addition, for so long as any Notes are listed on Euronext Dublin and so long as the guidelines of such exchange so require, notice of the Re-Pricing shall be given by the Trustee, in the name and at the expense of the Issuer, to Euronext Dublin. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader, Xxxxxxxxxx~~ Axxxx & ~~Xxxx~~ Oxxxx LLP or ~~Xxxxxx~~ Cxxxxx Xxxxxxxx Xxxxx & ~~Xxxxxxxx~~ Hxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call Period, at the ~~written direction of a Majority of the Preferred Shares~~ Issuer may (with the consent of the Collateral Manager~~), the Issuers shall~~ ) reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR applicable with respect to any Class of ~~Re-Pricing Eligible~~ Notes, other than the Class A Notes and the Class B Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not ~~effect~~ effectuate any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured~~ Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) ~~upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager~~ and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing~~. (b)~~ . At least 30 20 days (or such shorter period reasonably acceptable to the Trustee and the Collateral Manager) prior to the Business Day fixed by ~~a Majority of~~ the ~~Preferred Shares~~ Issuer for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing (with a copy to the Collateral Manager, the Trustee ~~(who shall promptly deliver a copy of such notice~~ and each Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (ia) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over LIBOR to be applied with respect to such Class (the “Re-Pricing Rate”); (iib) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (~~iii~~c) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ not more than 5 Business Days ~~prior to the proposed Re-Pricing Date~~after such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ aggregate principal amount of such Notes together with any accrued and unpaid interest thereon, including any Deferred Interest and any accrued and unpaid interest on such Deferred Interest, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture described in this Section 9.8. The Holder of each ~~Re-Pricing Eligible~~ Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Notes in accordance with the provisions of this Indenture described in this Section ~~9.7~~ 9.8 and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not ~~effect~~ effectuate any proposed Re-Pricing unless: (i) with the consent of ~~a Majority of the Preferred Shares and~~ the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date solely to decrease the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR applicable to the Re-Priced Class; (ii) the ~~Issuer, or~~ Trustee at the ~~Re-Pricing Intermediary on behalf~~ direction of the ~~Issuer, has received written commitments to purchase~~ Issuer confirms in writing that all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred pursuant to clause (c) above; (iii) ~~the~~ each Rating Agency shall have been notified of such Re-Pricing; and (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the ~~Holders of the Preferred Shares~~Issuer, unless such expenses shall have been paid (including from proceeds of ~~any~~ the additional issuance of ~~Preferred Shares~~Interests) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the ~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ Issuer pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by~~ first class mail, postage prepaid, mailed not less than three ~~(3)~~ Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Note Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by ~~a Majority of~~ the ~~Preferred Shares~~ Issuer on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to ~~the Issuer,~~ the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and ~~the~~ each Rating Agency~~. (f)~~ . The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer ~~may~~shall, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying ~~upon~~ upon, an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (Golub Capital Investment Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Notes, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written ~~opinion or~~ advice from ~~Cadwalader, Xxxxxxxxxx & Xxxx~~ Milbank LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (Owl Rock Capital Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of either (x) the Collateral Manager with the consent of the Retention Holder or (y) a Majority of the ~~Preferred Shares (~~Interests with the consent of the Collateral ~~Manager)~~Manager and the Retention Holder, the ~~Issuers~~ Issuer shall reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR with respect to any Class of ~~Re-Pricing Eligible~~ Notes, other than the Class A Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured~~ Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Interests and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by the Collateral Manager or a Majority of the ~~Preferred Shares~~ Interests, as applicable, for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and each of the Rating ~~Agency~~Agencies), which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest Rate to be applied with respect to such Class~~ spread over LIBOR (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within ~~five (5)~~ 5 Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each ~~Re-Pricing Eligible~~ Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all ~~Re-Pricing Eligible~~ Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to ~~effect~~ effectuate such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than ~~five (5)~~ 5 Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date ~~solely~~ to decrease the spread over ~~the Reference Rate~~ LIBOR (~~or, in the case of any Fixed Rate Notes, the~~ or stated ~~rate of interest~~interest rate) applicable to the Re-Priced ~~Class~~Class in accordance with Section 8.1; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders; (iii) ~~the~~ each Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has ~~received a written opinion or~~ obtained advice ~~from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ nationally-recognized U.S. tax counsel ~~of nationally recognized standing in the United States~~ experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income ~~tax~~ taxation with respect to its net ~~income (including~~ income, or to any withholding tax liability ~~imposed~~ under Section 1446 of the Code~~), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes~~; (v) in the case of any Re-Pricing directed by a Majority of the Interests, the written consent of the Collateral Manager and the Retention Holder, and in the case of any Re-Pricing directed by the Collateral Manager, the written consent of the Retention Holder, shall have been obtained; and (vi) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Interests, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Interests) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by~~ first class mail, postage prepaid, mailed not less than ~~three (3)~~ 3 Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Interests on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and ~~the~~ each Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or the Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of either (x) the Collateral Manager with the consent of the Retention Holder or (y) a Majority of the ~~Preferred Shares (~~Interests with the consent of the Collateral ~~Manager)~~Manager and the Retention Holder, the ~~Issuers~~ Issuer shall reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR with respect to any Class of ~~Re-Pricing Eligible~~ Notes, other than the Class A-1 Notes and the Class B Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured~~ Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Interests and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by the Collateral Manager or a Majority of the ~~Preferred Shares~~ Interests, as applicable, for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and each of the Rating ~~Agency~~Agencies), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Collateral Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Collateral Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured ~~Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured ~~Notes~~ Debt of the Re-Priced Class, including the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Collateral Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader, Xxxxxxxxxx &~~ Xxxx Xxxxxxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or ~~securities~~ debt of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Collateral Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Collateral Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Secured Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Collateral Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured ~~Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the ~~Preferred Shares~~ Subordinated Securities (with the consent of the Collateral Manager), the ~~Issuers~~ Applicable Issuer shall reduce the spread over ~~the Reference Rate~~ LIBORthe Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Applicable Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the ~~Preferred Shares~~ Subordinated Securities and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Securities for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Collateral Trustee and the Loan Agent (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Loan Agent, the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Collateral Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Loan Agent, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured ~~Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to ~~effect~~ effectuate such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured ~~Notes~~ Debt of the Re-Priced Class, including the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the ~~Preferred Shares~~ Subordinated Securities and the Collateral Manager, the Issuers and the Collateral Trustee shall have entered into a supplemental ~~indenture~~indenture and the Issuers, the Collateral Trustee and the Loan Agent shall have entered into an amendment to the Credit Agreement, as applicable, dated as of the Re-Pricing Date solely to decrease the spread over ~~the Reference Rate~~ LIBORthe Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, Tax Advice to the effect that (1) such Re-Pricing will not ~~result in~~ cause the Issuer ~~becoming subject~~ to have any U.S. federal income ~~tax with respect to its net income (including any~~ or withholding tax liability ~~imposed under Section 1446~~ or otherwise have a material adverse effect on the tax treatment of the ~~Code),~~ Issuer and (2) any Class A Debt or ~~result in the Issuer being~~ Class B Notes subject to Re-Pricing will be treated as ~~a publicly traded partnership taxable as a corporation~~ debt for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Securities, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Securities) or shall be adequately provided for by an entity other than the Issuer; and (vi) ~~none of~~ the Issuer, the Collateral Manager, the Retention Holder or and any “sponsor” of the Issuer under the U.S. Risk Retention Rules ~~fails to be~~ and the EU Risk Retention Requirements is in compliance with the U.S. Risk Retention Rules or and the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been timely received by the Collateral Trustee and the Loan Agent from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Collateral Trustee and the Loan Agent by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Secured Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Securities on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Collateral Trustee, the Loan Agent and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee and the Loan Agent shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Subordinated Securities and the Rating Agency. (f) The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Supplemental Indenture (Owl Rock Capital Corp)

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call ~~Period~~Period (except that the Class A-2 Notes shall be subject to Re-Pricing on and after December 5, ~~at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager~~2015), the ~~Issuers shall~~ Issuer may reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR applicable with respect to any Class of ~~Re-Pricing Eligible~~ Notes, other than the Class A-1 Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured~~ Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) ~~upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager~~ and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-~~Pricing. (b)~~ Pricing At least 30 days prior to the Business Day fixed by ~~a Majority of~~ the ~~Preferred Shares~~ Issuer for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing (with a copy to the Collateral Manager, the Trustee ~~(who shall promptly deliver a copy of such notice~~ and each Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (ia) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over LIBOR to be applied with respect to such Class (the “Re-Pricing Rate”); (iib) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (~~iii~~c) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ aggregate principal amount of such Notes together with any accrued and unpaid interest thereon, including any Deferred Interest and any accrued and unpaid interest on such Deferred Interest, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture described in this Section 9.8. The Holder of each ~~Re-Pricing Eligible~~ Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Notes in accordance with the provisions of this Indenture described in this Section ~~9.7~~ 9.8 and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date solely to decrease the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR applicable to the Re-Priced Class; (ii) the ~~Issuer, or~~ Trustee at the ~~Re-Pricing Intermediary on behalf~~ direction of the ~~Issuer, has received written commitments to purchase~~ Issuer confirms in writing that all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred pursuant to clause (C) above; (iii) ~~the~~ each Rating Agency shall have been notified of such Re-Pricing; and (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the ~~Holders~~ holders of the ~~Preferred Shares~~Interest, unless such expenses shall have been paid (including from proceeds of ~~any~~ the additional issuance of ~~Preferred Shares~~Interests) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (Golub Capital BDC, Inc.)

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes and with the consent of the Collateral ~~Manager)~~Manager and the U.S. Retention Provider, the ~~Issuers~~ Issuer shall reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated~~ LIBOR or fixed rate of ~~interest)~~ interest with respect to any Class of ~~Re-Pricing Eligible~~ Secured Notes, other than the Class A Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Secured Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto; provided further that in the case of a Re-Pricing of the Class D Notes, with the consent of all holders of the Class D Notes, such Re-Pricing (a) may apply only to a portion of the Class D Notes and (b) may allow Re-Pricing of such portion of the Class D Notes from a floating rate of interest to a fixed rate of interest or from a fixed rate of interest to a floating rate of interest. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing~~. (b)~~ . At least 30 20 days (or such shorter period reasonably acceptable to the Trustee and the Collateral Manager) prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “Re-Pricing Date”), the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer, ) shall deliver a notice in writing (with a copy to the Collateral Manager, the Trustee ~~(who shall promptly deliver a copy of such notice~~ and the Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (ia) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over LIBOR or fixed rate of interest to be applied with respect to such Class (the “Re-Pricing Rate”); (iib) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (~~iii~~c) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ not more than 5 Business Days ~~prior to the proposed Re-Pricing Date~~after such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such ~~notice~~notice (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to more than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise ~~Notices~~Notices (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to less than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the ~~Issuer~~Issuer (subject to the minimum denomination and applicable procedures of DTC), shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ aggregate principal amount of such Notes together with any accrued and unpaid interest thereon, including any Deferred Interest and any accrued and unpaid interest on such Deferred Interest, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture described in this Section 9.8. The Holder of ~~each Re-Pricing Eligible Note~~any Secured Notes, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with the provisions of this Indenture described in this Section ~~9.7~~ 9.8 and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, other than with respect to a Re-Pricing of the Class D Notes, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a the Majority of the ~~Preferred Shares~~ Subordinated Notes, the Collateral Manager and the ~~Collateral Manager~~U.S. Retention Provider, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date solely to decrease the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated~~ LIBOR or fixed interest rate ~~of interest) applicable~~ with respect to the Re-Priced Class; (ii) the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer~~, has received written commitments to purchase~~ ) confirms in writing that all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred pursuant to clause (c) above; (iii) the Rating Agency shall have been notified of such Re-~~Pricing~~Pricing and, in the case of a partial Re-Pricing of Class D Notes, the S&P Rating Condition has been satisfied with respect to the Class D Notes; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the Issuer; and (viv) ~~none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of~~ the Issuer ~~under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules~~ has received written advice from Dechert LLP or ~~the EU Risk Retention Requirements as a result~~ an opinion of counsel of nationally recognized standing that (A) such Re-Pricing ~~unless such Person has consented to~~ will not result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (B) such Re-~~Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of~~ Pricing will not result in the Issuer ~~in connection with such Re-Pricing. (e)~~ being subject to U.S. federal income tax on a net basis. If notice has been received by the Trustee from the ~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ Collateral Manager pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by~~ first class mail, postage prepaid, mailed not less than three ~~(3)~~ Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and the Rating Agency~~. (f)~~ . The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer ~~may~~shall, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s), or in the case of a partial Re-Pricing of the Class D Notes, obtain and assign a separate CUSIP or CUSIPs to the Class D Notes which are subject to such Re-Pricing. The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing. For the avoidance of doubt, if no Unfunded Class Non-Call Period is in effect, the Class D Notes may be subject to a Re-Pricing as if any Unfunded Class Non-Call Period had ended.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 thirty (30) days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating ~~Agency~~Agencies), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Notes, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating ~~Agency~~ Agencies shall have been notified of such Re-Pricing; (iv) the Issuer has received a written ~~opinion or~~ advice from ~~Cadwalader, Xxxxxxxxxx &~~ Xxxx Xxxxxxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax ~~with respect to its~~ on a net ~~income~~ basis (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating ~~Agency~~Agencies. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (Blue Owl Credit Income Corp.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference ~~Rate~~ RateBenchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference ~~Rate~~ RateBenchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader~~Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Supplemental Indenture (Blue Owl Capital Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the ~~Re-~~Re- Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader~~Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Supplemental Indenture (Blue Owl Capital Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of either (x) the Collateral Manager with the consent of the Retention Holder or (y) a Majority of the ~~Preferred Shares (~~Interests with the consent of the Collateral ~~Manager)~~Manager and the Retention Holder, the ~~Issuers~~ Issuer shall reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR with respect to any Class of ~~Re-Pricing Eligible~~ Notes, other than the Class A Notes, the Class B Notes, and the Class C Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured~~ Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Interests and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by the Collateral Manager or a Majority of the ~~Preferred Shares~~ Interests, as applicable, for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and each of the Rating ~~Agency~~Agencies), which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over LIBOR to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within ~~five (5)~~ 5 Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each ~~Re-Pricing Eligible~~ Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all ~~Re-Pricing Eligible~~ Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to ~~effect~~ effectuate such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than ~~five (5)~~ 5 Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date ~~solely~~ to decrease the spread over ~~the Reference Rate~~ LIBOR (~~or, in the case of any Fixed Rate Notes, the~~ or stated ~~rate of interest~~interest rate) applicable to the Re-Priced ~~Class~~Class in accordance with Section 8.1; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders; (iii) ~~the~~ each Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has ~~received a written opinion or~~ obtained advice ~~from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ nationally-recognized U.S. tax counsel ~~of nationally recognized standing in the United States~~ experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income ~~tax~~ taxation with respect to its net ~~income (including~~ income, or to any withholding tax liability ~~imposed~~ under Section 1446 of the Code~~), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes~~; (v) in the case of any Re-Pricing directed by a Majority of the Interests, the written consent of the Collateral Manager and the Retention Holder, and in the case of any Re-Pricing directed by the Collateral Manager, the written consent of the Retention Holder, shall have been obtained; and (vi) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Interests, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Interests) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by~~ first class mail, postage prepaid, mailed not less than ~~three (3)~~ 3 Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Interests on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and ~~the~~ each Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or the Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Notes, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ Benchmark applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion ~~or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Secured Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Collateral Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Collateral Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Collateral Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written ~~opinion or~~ advice from ~~Cadwalader, Xxxxxxxxxx & Xxxx~~ Xxxxxxx and Xxxxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Collateral Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Collateral Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Collateral Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (with the consent of the Collateral Manager)~~Interests, the ~~Issuers~~ Issuer shall reduce the spread over LIBOR (or the ~~Reference Rate (or~~stated interest rate, in the case of ~~any~~ Fixed Rate Notes~~, the stated rate of interest~~) applicable with respect to any Class of ~~Re-Pricing Eligible~~ Notes (other than the Class A Notes) (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured~~ Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Interests and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Interests for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and ~~the Rating Agency~~Xxxxx’x), which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over LIBOR (or stated interest rate) to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within ~~five (5)~~ 5 Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each ~~Re-Pricing Eligible~~ Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all ~~Re-Pricing Eligible~~ Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to ~~effect~~ effectuate such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than ~~five (5)~~ 5 Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a the Majority of the ~~Preferred Shares and the Collateral Manager~~Interests, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date solely to decrease the spread over ~~the Reference Rate~~ LIBOR (~~or, in the case of any Fixed Rate Notes, the~~ or stated ~~rate of interest~~interest rate) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders; (iii) ~~the Rating Agency~~ Xxxxx’x shall have been notified of such Re-Pricing; (iv) the Issuer has ~~received a written opinion or~~ obtained advice ~~from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ nationally-recognized U.S. tax counsel ~~of nationally recognized standing in the United States~~ experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income ~~tax~~ taxation with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposesincome; and (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Interests, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Interests) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by~~ first class mail, postage prepaid, mailed not less than ~~three (3)~~ 3 Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Interests on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and ~~the Rating Agency~~Xxxxx’x. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes and with the consent of the Collateral ~~Manager)~~Manager and the U.S. Retention Provider, the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate (or, in~~ Benchmark or the ~~case of any Fixed Rate Notes, the stated~~ fixed interest rate ~~of interest)~~ applicable with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such ~~reduction~~reduction with respect to any such Class of Debt, a “"Re-Pricing” " and any Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “"Re-Priced Class”"); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “"Re-Pricing Intermediary”") upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing~~. (b)~~ . At least 30 20 days (or such shorter period reasonably acceptable to the Collateral Trustee, the Loan Agent and the Collateral Manager) prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “"Re-Pricing Date”"), the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer, ) shall deliver a notice in writing (with a copy to the ~~Trustee (who shall promptly deliver a copy of such notice~~ Collateral Manager, the Collateral Trustee, the Loan Agent and the Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (ia) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over the Benchmark or the fixed interest rate to be applied with respect to such Class (the “"Re-Pricing Rate”"); (iib) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (~~iii~~c) specify the price at which ~~Secured Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ not more than 5 Business Days ~~prior to the proposed Re-Pricing Date~~after such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Loan Agent, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “"Exercise Notice”") within five ~~(5)~~ Business Days after receipt of such ~~notice~~notice (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to more than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise ~~Notices~~Notices (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to less than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the ~~Issuer~~Issuer (subject to the minimum denomination and applicable procedures of DTC), shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible Notes~~ Debt to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ aggregate principal amount of such Debt together with any accrued and unpaid interest thereon, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture described in this Section 9.8. ~~The~~ Each Holder of ~~each Re-Pricing Eligible Note~~Secured Debt, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with the provisions of this Indenture described in this Section ~~9.7~~ 9.8 and agrees to cooperate with the Issuer, the Re-Pricing ~~Intermediary~~ Intermediary, the Loan Agent and the Collateral Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the ~~Trustee~~ Collateral Trustee, the Loan Agent and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a the Majority of the ~~Preferred Shares~~ Subordinated Notes, the Collateral Manager and the U.S. Retention Provider, the Issuer, the Loan Agent and the Collateral ~~Manager, the Issuers and the~~ Trustee shall have entered into a supplemental ~~indenture~~indenture and the Issuer, the Collateral Trustee and the Loan Agent shall have entered into an amendment to the Credit Agreement, as applicable, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes, the stated~~ Benchmark or fixed interest rate ~~of interest)~~ applicable to the Re-Priced Class; (ii) the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer~~, has received written commitments to purchase~~ ) confirms in writing that all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred pursuant to clause (c) above; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the ~~Issuer~~ Issuer, the Loan Agent and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the Issuer; and (viv) ~~none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of~~ the Issuer ~~under~~ has received written advice from Dechert LLP or Pxxx Xxxxxxxx LLP, or an Opinion of Counsel of nationally recognized standing to the ~~U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of~~ effect that (A) such Re-Pricing ~~unless such Person has consented to~~ will not result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (B) such Re-~~Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of~~ Pricing will not result in the Issuer ~~in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary~~ being subject to U.S. federal income tax on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuernet basis. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Collateral Trustee, the Loan Agent and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee shall send such notice to the Holders of ~~Secured Notes~~ Debt and the Rating Agency~~. (f)~~ . The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer ~~may~~shall, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee and the Loan Agent shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee and the Loan Agent may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee or the Loan Agent in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of either (i) the Collateral Manager with the consent of the U.S. Retention Sponsor and the EU/UK Retention Holder or (ii) a Majority of the ~~Preferred Shares (~~Subordinated Notes with the consent of the Collateral Manager), the ~~Issuers~~ U.S. Retention Sponsor and the EU/UK Retention Holder, the Issuer, shall ~~reduce~~ reduce, as applicable, (x) the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Floating Rate Debt and/or (y) the fixed rate of interest with respect to any Class of Fixed Rate Debt, in each case, where such Class of Debt constitutes Re-Pricing Eligible ~~Notes~~ Debt (such ~~reduction~~reduction with respect to any such Class of Debt, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least ~~30 days~~ 15 Business Days (or such shorter period of time as the Trustee and the Collateral Manager find reasonably acceptable) prior to the Business Day fixed by the Collateral Manager or a Majority of the ~~Preferred Shares~~ Subordinated Notes, as applicable, for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly ~~deliver~~ forward a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and the Rating Agency), ) which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Reference Rate or range of spreads over the Reference Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which ~~Secured Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 5 Business Days ~~prior to~~ after the ~~proposed Re-Pricing Date~~date of such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly ~~deliver~~ forward a copy of such notice to the consenting Holders of the Re-Priced Class), ) specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within ~~five (5)~~ 5 Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of ~~each Re-Pricing Eligible Note~~any Debt, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all ~~Re-Pricing Eligible Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to ~~effect~~ effectuate such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than ~~five (5)~~ one Business ~~Days~~ Day prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date ~~solely~~ to decrease (x) the spread over the Reference Rate or (~~or, in~~ y) the ~~case of any Fixed Rate Notes, the stated~~ fixed rate of interest~~) applicable to~~ , as applicable, for the Re-Priced ~~Class~~Class in accordance with Section 8.1; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has ~~received a~~ obtained written ~~opinion or~~ advice ~~from Cadwalader~~of Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP or ~~Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP,~~ Dechert LLP or ~~a written~~ an opinion of ~~other~~ nationally-recognized U.S. tax counsel ~~of nationally recognized standing in the United States~~ experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income ~~tax~~ taxation with respect to its net income (including any withholding tax liability ~~imposed~~ under Section 1446 of the Code), ) other than by operation of Chapter 63 of Subtitle F of the Code or ~~result in the Issuer being treated as~~ becoming a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) in the case of any Re-Pricing directed by a Majority of the Subordinated Notes, the written consent of the Collateral Manager, the U.S. Retention Sponsor and the EU/UK Retention Holder, and in the case of any Re-Pricing directed by the Collateral Manager, the written consent of the U.S. Retention Sponsor and the EU/UK Retention Holder, shall have been obtained; (vi) all expenses of the Issuer and the ~~Trustee (including~~ Trustee, along with the fees of the Re-Pricing Intermediary and fees of counsel) , incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the ~~Issuer;~~ Issuer and (vivii) ~~none of~~ (A) neither the ~~Issuer, the Collateral Manager, the Retention Holder or~~ Issuer nor any “sponsor” ~~of the Issuer under~~ (as defined in the U.S. Risk Retention ~~Rules fails~~ Rules) of the Issuer will fail to be in compliance with the U.S. Risk Retention Rules ~~or the EU Risk Retention Requirements~~ as a result of such Re-~~Pricing unless such Person~~ Pricing, (B) there has ~~consented~~ been no change in the U.S. Risk Retention Rules that would require any “sponsor” (as defined in the U.S. Risk Retention Rules) of the Issuer to ~~such~~ hold more than 5% of the credit risk collateralizing the debt issued in connection with the Re-~~Pricing. Unless~~ Pricing and (C) unless it ~~otherwise consents~~consents to do so, none of the Collateral Manager, the EU/UK Retention ~~Holder nor~~ Holder, the U.S. Retention Sponsor, any Affiliate of ~~their Affiliates shall~~ the Collateral Manager or any “sponsor” (as defined in the U.S. Risk Retention Rules) of the Issuer will be required to ~~acquire~~ purchase any ~~obligations or securities of the Issuer~~ debt issued in connection with ~~such~~ the Re-Pricing~~. (e)~~ . If ~~notice has been received by~~ the Trustee receives written notice from the ~~Issuer, or the~~ Issuer that a proposed Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held is not effectuated by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, the Trustee shall post notice to ~~each Holder of Notes~~ the Trustee’s website and notify the Holders of the ~~Re-Priced Class at~~ Debt and the ~~address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable~~ Rating Agency that such proposed Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall was not ~~impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect.~~ effectuated. (e) Any notice of a Re-Pricing may be withdrawn by ~~a Majority of~~ the ~~Preferred Shares~~ Collateral Manager on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the ~~Issuer,~~ Issuer and the Trustee ~~and the Collateral Manager~~ for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or the Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (HPS Corporate Lending Fund)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 thirty (30) days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Collateral Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Collateral Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Collateral Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written ~~opinion or~~ advice from ~~Cadwalader, Xxxxxxxxxx &~~ Xxxx Xxxxxxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax ~~with respect to its~~ on a net ~~income~~ basis (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Collateral Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Collateral Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Collateral Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 thirty (30) days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Notes, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader, Xxxxxxxxxx &~~ Xxxx Xxxxxxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of either (i) the Collateral Manager with the consent of the Retention Holder or (ii) a Majority of the ~~Preferred Shares (~~Subordinated Notes with the consent of the Collateral ~~Manager)~~Manager and the Retention Holder, the ~~Issuers~~ Issuer shall reduce (x) the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Floating Rate Debt and/or (y) the fixed rate of interest with respect to any Class of Fixed Rate Debt, in each case, where such Class of Debt constitutes Re-Pricing Eligible ~~Notes~~ Debt (such ~~reduction~~reduction with respect to any such Class of Debt, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least ~~30 days~~ 15 Business Days (or such shorter period of time as the Trustee (and Loan Agent, if applicable), and the Collateral Manager find reasonably acceptable) prior to the Business Day fixed by the Collateral Manager or a Majority of the ~~Preferred Shares~~ Subordinated Notes, as applicable, for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly ~~deliver~~ forward a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral ~~Manager~~ Manager, S&P and Euronext Dublin (so long as any Listed Debt is listed thereon and so long as the ~~Rating Agency~~guidelines of such exchange so require)) and Loan Agent, if applicable, which notice shall: : (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Reference Rate or range of spreads over the Reference Rate to be applied with respect to such Class (the “Re-Pricing Rate”); ; (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; ~~and~~ and (iii) specify the price at which ~~Secured Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture and Security Agreement (Nuveen Churchill Direct Lending Corp.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call ~~Period~~Period for any Class of Re-Pricing Eligible Debt, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark and/or fixed interest rate applicable with respect to such Class of Re-Pricing Eligible Debt (~~or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ such reduction with respect to any Class of ~~Re-Pricing Eligible Notes (such reduction~~Notes, a “Re-Pricing” and any such Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Collateral Manager on behalf of the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. Each Holder of Re-Pricing Eligible Debt, by its acceptance of an interest in such Debt, agrees to cooperate with the Issuer, the Collateral Manager, the Re-Pricing Intermediary (if any) and the Collateral Trustee in connection with any Re-Pricing and acknowledges that its Re-Pricing Eligible Debt may be sold or redeemed with or without such Holder’s consent and that the sole alternative to any such Re-Pricing or redemption is to commit to sell its interest in the Debt of the Re-Priced Class. In connection with a Re-Pricing, the Issuer may issue Re-Pricing Replacement Notes, the proceeds of which shall be used to redeem non-consenting Holders in accordance with Section 9.8(c) (Optional Re-Pricing). (b) At least ~~30 days~~ 15 Business Days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice (the “Re-Pricing Notice”) in writing (with a copy to the Collateral Manager, the Collateral Trustee ~~(who shall promptly deliver a copy of such notice~~ and each Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over the Benchmark and/or fixed interest rate (or range of spreads and/or fixed interest rates) to be applied with respect to such Class (the “Re-Pricing Rate”);, (ii) request each Holder of the Re-Priced Class to approve the proposed Re-~~Pricing;~~ Pricing and indicate which Re-Pricing Rate (or range thereof) they have approved, and (iii) specify the price ~~at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c),~~ (which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price ~~after giving effect on a pro forma basis to all payments to be made pursuant to~~ of such Debt) at which Secured Debt of any Holder of the ~~Priority of Payments on~~ Re-Priced Class who does not approve the Re-Pricing ~~Date if~~ may be (x) sold and transferred pursuant to Section 9.8(c) (Optional Re-Pricing) or (y) redeemed with Re-Pricing Proceeds and all funds available for such ~~date is a Payment Date~~purpose. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 20 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by such non-consenting ~~Holders~~Holders (such notice, the “Non-Consent Notice”), and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to (A) purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (such purchase and sale, a “Re-Pricing Transfer”) and/or (B) purchase Re-Pricing Replacement Notes with respect thereto at the price specified in the Re-Pricing Notice or Non-Consent Notice, as applicable, and (C) in each case, the Aggregate Outstanding Amount of such Debt and/or Re-Pricing Replacement Notes that it would agree to acquire (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of ~~such notice~~the Non-Consent Notice. In the event the Issuer shall receive Exercise Notices with respect to ~~more~~ Debt of the Re-Priced Class in an amount greater than or equal to the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, ~~shall cause the sale and transfer~~ may effect Re-Pricing Transfers of such ~~Secured~~ Re-Pricing Eligible Debt or issue Re-Pricing Replacement Notes, as applicable, without further notice to the non-consenting Holders ~~thereof (for settlement~~ thereof, on the Re-Pricing ~~Date)~~ Date to the Holders delivering Exercise Notices with respect thereto, pro rata (subject to the applicable Authorized Denomination requirements) based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall ~~cause the sale and transfer~~ conduct a Re-Pricing Transfer of such ~~Secured~~ Re-Pricing Eligible Debt or issue Re-Pricing Replacement Notes, as applicable, without further notice to the non-consenting Holders thereof, ~~for settlement~~ on the Re-Pricing ~~Date to the Holders delivering Exercise Notices with respect thereto, and any~~ Date. Any excess ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by a non-consenting ~~Holders~~ Holder after giving effect to the Exercise Notices, Re-Pricing Replacement Notes and issuance of Re-Pricing Replacement Notes shall be sold ~~(for settlement on the Re-Pricing Date)~~ to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to~~ or by the Collateral Manager on behalf of the Issuer. All Re-Pricing Transfers and sales of Re-Pricing ~~Eligible~~ Replacement Notes to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price ~~after giving effect on a pro forma basis~~ with respect to ~~all payments to be made pursuant to the Priority of Payments on the~~ such Re-Pricing ~~Date if such date is a Payment Date~~Eligible Debt, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares~~ Issuer and the Collateral ~~Manager, the Issuers and the~~ Trustee shall have entered into a supplemental ~~indenture,~~ indenture pursuant to Section 8.2(c) (Supplemental Indentures With Consent of Holders of Debt) dated as of the Re-Pricing Date ~~solely~~ to ~~decrease~~ modify the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes, the stated~~ Benchmark and/or fixed interest rate ~~of interest)~~ applicable to the Re-Priced ~~Class~~Class and/or, in the case of the issuance of Re-Pricing Replacement Notes, to issue such Re-Pricing Replacement Notes and to reflect any necessary changes to the definitions of “Non-Call Period” or “Redemption Price” of the Re-Priced Class to be made pursuant to Section 9.8(f) (Optional Re-Pricing); (ii) the ~~Issuer, or the~~ Re-Pricing Intermediary or the Collateral Manager (on behalf of the Issuer~~, has received written commitments to purchase~~ ) confirms in writing that all ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred or redeemed on the same day; (iii) ~~the~~ each Rating Agency shall have been notified of such Re-~~Pricing;~~ Pricing in accordance with Section 14.3 (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture and Security Agreement (Varagon Capital Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in -162- purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion ~~or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call ~~Period~~Period for any Class of Re-Pricing Eligible Debt, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes with the consent of the Collateral Manager), the ~~Issuers shall~~ Issuer may reduce the spread over the Reference Rate and/or fixed interest rate applicable with respect to such Class of Re-Pricing Eligible Debt (~~or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ such reduction with respect to any Class of ~~Re-Pricing Eligible Notes (such reduction~~Debt, a “"Re-Pricing” " and any such Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “"Re-Priced Class”"); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Collateral Manager on behalf of the Issuer may engage a broker-dealer (the “"Re-Pricing Intermediary”") upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. Each Holder of Re-Pricing Eligible Debt, by its acceptance of an interest in such Debt, agrees to cooperate with the Issuer, the Collateral Manager, the Re-Pricing Intermediary (if any) and the Collateral Trustee in connection with any Re-Pricing and acknowledges that its Re-Pricing Eligible Debt may be sold or redeemed with or without such Holder's consent and that the sole alternative to any such Re-Pricing or redemption is to commit to sell its interest in the Notes of the Re-Priced Class. In connection with a Re-Pricing, the Issuer may issue Re-Pricing Replacement Debt, the proceeds of which shall be used to redeem non-consenting Holders in accordance with Section 9.8(c) (Optional Re-Pricing). (b) At least ~~30 days~~ 20 Business Days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “"Re-Pricing Date”"), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice (the "Re-Pricing Notice") in writing (with a copy to the Collateral Manager, the Collateral Trustee ~~(who shall promptly deliver a copy of such notice~~ and the Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: : (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Reference Rate and/or fixed interest rate (or range of spreads and/or fixed interest rates) to be applied with respect to such Class (the “"Re-Pricing Rate”"); , (ii) request each Holder of the Re-Priced Class consent to ~~approve~~ the proposed Re-~~Pricing; and (iii) specify the price at~~ Pricing and indicate which ~~Secured Notes of any Holder of the Re-Priced Class which does not approve the~~ Re-Pricing ~~may be sold and transferred pursuant to Section 9.7(c)~~Rate (or range thereof) they have consented to, which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date.and (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 15 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by such non-consenting ~~Holders~~Holders (such notice, the "Non-Consent Notice"), and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to (A) purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (such purchase and sale, a "Re-Pricing Transfer") and/or (B) purchase Re-Pricing Replacement Debt with respect thereto at the price specified in the Re-Pricing Notice or Non-Consent Notice, as applicable, and (C) in each case, the Aggregate Outstanding Amount of such Debt and/or Re-Pricing Replacement Debt that it would agree to acquire (each such notice, an “"Exercise Notice”") within five (5) Business Days after receipt of ~~such notice~~the Non-Consent Notice. In the event the Issuer shall receive Exercise Notices with respect to ~~more~~ Debt of the Re-Priced Class in an amount greater than or equal to the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, ~~shall cause the sale and transfer~~ may effect Re-Pricing Transfers of such ~~Secured Notes~~Re-Pricing Eligible Debt or issue Re-Pricing Replacement Debt, as applicable, without further notice to the non-consenting Holders ~~thereof (for settlement~~ thereof, on the Re-Pricing ~~Date)~~ Date to the Holders delivering Exercise Notices with respect thereto, pro rata (subject to the applicable Authorized Denomination requirements) based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall ~~cause the sale and transfer~~ conduct a Re-Pricing Transfer of such ~~Secured Notes~~Re-Pricing Eligible Debt or issue Re-Pricing Replacement Debt, as applicable, without further notice to the non-consenting Holders thereof, ~~for settlement~~ on the Re-Pricing ~~Date to the Holders delivering Exercise Notices with respect thereto, and any~~ Date. Any excess ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by a non-consenting ~~Holders~~ Holder after giving effect to the Exercise Notices, Re-Pricing Replacement Debt and issuance of Re-Pricing Replacement Debt shall be sold ~~(for settlement on the Re-Pricing Date)~~ to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to~~ or by the Collateral Manager on behalf of the Issuer. All Re-Pricing Transfers and sales of Re-Pricing ~~Eligible Notes~~ Replacement Debt to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price ~~after giving effect on a pro forma basis~~ with respect to ~~all payments to be made pursuant to the Priority of Payments on the~~ such Re-Pricing ~~Date if such date is a Payment Date~~Eligible Debt, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with the consent of a Majority of the Preferred Shares and the Collateral Manager,~~ the Issuers and the Collateral Trustee shall have entered into a supplemental ~~indenture,~~ indenture pursuant to Section 8.2(c) (Supplemental Indentures With Consent of Holders of Debt) dated as of the Re-Pricing Date ~~solely~~ to ~~decrease~~ modify the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated~~ and/or fixed interest rate ~~of interest)~~ applicable to the Re-Priced ~~Class; (ii)~~ Class and/or, in the ~~Issuer, or~~ case of the issuance of Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such mattersReplacement Debt, to ~~the effect that~~ issue such Re-Pricing ~~will not result in the Issuer becoming subject~~ Replacement Debt and to ~~U.S. federal income tax with respect to its net income (including~~ reflect any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant necessary changes to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing.definitions of (e) If notice has been received by the Collateral Trustee ~~from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a Re-Pricing shall be given by the Collateral Trustee ~~by email transmission, if available, and~~ (at the direction of the Issuer) by first class mail, postage prepaid, mailed not less than three ~~(3)~~ Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class at the address in the Register (~~and, in the case of Global Notes, delivered by electronic transmission to DTC) (~~with a copy to the Collateral Manager, the Collateral Trustee and the Rating Agency), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense and direction of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes or the Collateral Manager on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee and~~ Collateral Trustee, the Collateral Manager (if applicable) and the Re-Pricing Intermediary for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee (at the direction of the Issuer) shall send such notice to the Holders of ~~Secured Notes~~ Re-Pricing Eligible Debt and the Rating Agency. (f) ~~The Issuer shall direct~~ In connection with a Re-Pricing (x) the ~~Trustee to segregate payments and take other reasonable steps to effect~~ Non-Call Period for the Re-~~Pricing and the Trustee shall have the authority to take such actions as~~ Priced Class may be ~~directed by~~ extended or imposed from such Re-Pricing Date at the ~~Issuer or~~ direction of the Collateral Manager as with the ~~Issuer (or~~ consent of a Majority of the Subordinated Notes prior to such Re-Pricing ~~Intermediary on behalf~~ and/or (y) the definition of "Redemption Price" may be revised, pursuant to a supplemental indenture entered into under Section 8.2(c) (Supplemental Indentures With Consent of Holders of Debt), to reflect any agreed upon make-whole payments for the applicable Re-Priced Class at the direction of the ~~Issuer) or~~ Collateral Manager ~~shall deem necessary or desirable to effect~~ with the approval of a ~~Re-Pricing. In order to give effect to~~ Majority of the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-PricingSubordinated Notes.

Appears in 1 contract

Samples: Indenture (Barings Private Credit Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the ~~Preferred Shares (with the consent of the Collateral Manager)~~Subordinated Notes, the Co-Issuers shall reduce the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ Benchmark with respect to any Class of ~~Re-Pricing Eligible Notes~~ Floating Rate Debt (other than the Class A- 1 Debt) or the stated rate of interest with respect to any Class of Fixed Rate Debt (other than the Class A-1 Debt) (such ~~reduction~~reduction with respect to any such Class of Secured Debt, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Co-Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Class of Secured ~~Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the ~~Trustee~~ Trustee, the Collateral Agent (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and the Rating Agency)) and the Loan Agent, which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over the Benchmark or the stated rate of interest, as applicable, to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which ~~Secured Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee~~ Trustee, the Collateral Agent (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class)) and the Loan Agent, specifying the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured ~~Notes~~ Debt of the Re-Priced Class held by the ~~non-~~non- consenting Holders (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the ~~Re-~~Re- Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of ~~each Re-Pricing Eligible Note~~any Secured Debt, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all ~~Re-Pricing Eligible Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and ~~attorney-in-~~attorney in fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the ~~Trustee~~ Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured ~~Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of~~ Co-Issuers, the ~~Preferred Shares~~ Trustee and the Collateral ~~Manager, the Issuers and the Trustee~~ Agent shall have entered into a supplemental ~~indenture,~~ indenture (prepared by or on behalf of the Issuer) dated as of the Re-Pricing Date ~~solely~~ to decrease the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes,~~ Benchmark or the stated rate of interest) , applicable to the Re-Priced ~~Class~~Class in accordance with Section 8.1; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received ~~a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written~~ an opinion of ~~other~~ tax counsel of ~~nationally~~ nationally-recognized standing in the United States experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not (A) result in the Issuer becoming subject to U.S. federal income tax with respect to its net income ~~(including any~~ or subject to tax liability ~~imposed~~ under Section 1446 of the ~~Code),~~ Code or (B) result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) the written consent of the Transferor, the Depositor and the Collateral Manager shall have been obtained; and (vi) all expenses of the ~~Issuer~~ Co-Issuers, the Trustee, the Collateral Agent and the ~~Trustee~~ Loan Agent (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the ~~Holders~~ holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Notes and any Contribution) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the ~~Trustee~~ Collateral Agent from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be ~~given~~ provided by the ~~Trustee by email transmission, if available, and~~ Collateral Agent (at the expense of the Issuer) by first class mail, postage prepaid, mailed not less than ~~three (3)~~ 3 Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Debt of the Re-Priced Class at the address in the Note Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the ~~Trustee~~ Collateral Agent at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the ~~Trustee~~ Collateral Agent, at the expense of the Issuer, shall send such notice to the Holders of ~~Secured Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the ~~Trustee~~ Collateral Agent to segregate payments and take other reasonable steps to effect the Re-Pricing and the ~~Trustee~~ Collateral Agent shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or the Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Trustee and the Collateral Agent shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee and the Collateral Agent may request and rely on an Issuer Order providing direction and any additional information requested ~~by the Trustee~~ in order to effect a Re-~~Pricing~~Pricing and shall have no liability for relying on the same.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the Preferred Shares (with the consent of the Depositor and the Collateral Manager), the Co-Issuers shall reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes,~~ LIBOR or the stated ~~rate of interest)~~ interest rate, as applicable, with respect to any Class of ~~Re-Pricing Eligible Notes~~ Secured Debt (other than the Class A-1 Debt) (such ~~reduction~~reduction with respect to any such Class of Secured Debt, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Co-Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Class of Secured ~~Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the Preferred Shares ~~and (ii) the Collateral Manager~~ and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the ~~Trustee~~ Trustee, the Collateral Agent (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and ~~the~~ each Rating Agency)) and the Loan Agent, which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over LIBOR or the stated interest rate, as applicable, to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee~~ Trustee, the Collateral Agent (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class)) and the Loan Agent, specifying the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured ~~Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within ~~five (5)~~ 5 Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of ~~the Secured Notes~~ such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount ~~of the Secured Notes~~ of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible Notes~~ Secured Debt to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the ~~Re-~~Re- Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each ~~Re-Pricing Eligible~~ Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all ~~Re-Pricing Eligible Notes~~ Secured Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the ~~Trustee~~ Collateral Agent to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the ~~Trustee~~ Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager not later than ~~five (5)~~ 5 Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured ~~Notes~~ Debt of the Re-Priced Class, including the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of~~ Co-Issuers, the ~~Preferred Shares~~ Trustee, and the Collateral ~~Manager, the Issuers and the Trustee~~ Agent shall have entered into a supplemental ~~indenture~~indenture (prepared by or on behalf of the Issuer), dated as of the Re-Pricing Date ~~solely~~ to decrease the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes,~~ LIBOR or the stated ~~rate of interest)~~ interest rate, as applicable, applicable to the Re-Priced ~~Class~~Class in accordance with Section 8.1; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating ~~Agency~~ Agencies shall have been notified of such Re-Pricing; (iv) the Issuer has received ~~a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written~~ an opinion of ~~other~~ tax counsel of ~~nationally~~ nationally-recognized standing in the United States experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income ~~(including any~~ or subject to tax liability ~~imposed~~ under Section 1446 of the Code~~), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes~~; (v) the written consent of the Depositor and the Collateral Manager shall have been obtained; and (vi) all expenses of the ~~Issuer~~ Co-Issuers, the Trustee, the Collateral Agent and the ~~Trustee~~ Loan Agent (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the ~~Holders~~ holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred ~~Shares~~Shares and any Cash Contribution) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the ~~Trustee~~ Collateral Agent from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be ~~given~~ provided by the ~~Trustee by email transmission, if available, and~~ Collateral Agent (at the expense of the Issuer) by first class mail, postage prepaid, mailed not less than ~~three (3)~~ 3 Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Secured Debt of the Re-Priced Class at its address as it appears on the ~~address in the~~ Note Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the ~~Trustee~~ Collateral Agent at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the ~~Trustee~~ Collateral Agent, at the expense of the Issuer, shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Rating ~~Agency~~Agencies. (f) The Issuer shall direct the ~~Trustee~~ Collateral Agent to segregate payments and take other reasonable steps to effect the Re-Pricing and the ~~Trustee~~ Collateral Agent shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or the Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured ~~Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Trustee and Collateral Agent shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee and Collateral Agent may request and rely on an Issuer Order providing direction and any additional information requested ~~by the Trustee~~ in order to effect a Re-~~Pricing~~Pricing and shall have no liability for relying on the same.

Appears in 1 contract

Samples: Indenture (PennantPark Floating Rate Capital Ltd.)

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes and with the consent of the Collateral ~~Manager)~~Manager and the U.S. Retention Provider, the ~~Issuers~~ Issuer shall reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR applicable with respect to any Class of ~~Re-Pricing Eligible~~ Secured Notes, other than the Class A Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible~~ Secured Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing~~. (b)~~ . At least 30 20 days (or such shorter period reasonably acceptable to the Trustee and the Collateral Manager) prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “Re-Pricing Date”), the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer, ) shall deliver a notice in writing (with a copy to the Collateral Manager, the Trustee ~~(who shall promptly deliver a copy of such notice~~ and each Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (ia) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over LIBOR to be applied with respect to such Class (the “Re-Pricing Rate”); (iib) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (~~iii~~c) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ not more than 5 Business Days ~~prior to the proposed Re-Pricing Date~~after such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such ~~notice~~notice (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to more than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise ~~Notices~~Notices (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to less than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the ~~Issuer~~Issuer (subject to the minimum denomination and applicable procedures of DTC), shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ aggregate principal amount of such Notes together with any accrued and unpaid interest thereon, including any Deferred Interest and any accrued and unpaid interest on such Deferred Interest, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture described in this Section 9.8. The Holder of each ~~Re-Pricing Eligible~~ Secured Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with the provisions of this Indenture described in this Section ~~9.7~~ 9.8 and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a the Majority of the ~~Preferred Shares~~ Subordinated Notes, the Collateral Manager and the ~~Collateral Manager~~U.S. Retention Provider, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date solely to decrease the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR applicable to the Re-Priced Class; (ii) the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer~~, has received written commitments to purchase~~ ) confirms in writing that all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred pursuant to clause (c) above; (iii) ~~the~~ each Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of ~~any~~ the additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the Issuer; and (viv) ~~none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of~~ the Issuer ~~under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules~~ has received written advice from Dechert LLP or ~~the EU Risk Retention Requirements as a result~~ an opinion of counsel of nationally recognized standing that (A) such Re-Pricing ~~unless such Person has consented to~~ will not result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (B) such Re-~~Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of~~ Pricing will not result in the Issuer ~~in connection with such Re-Pricing. (e)~~ being subject to U.S. federal income tax on a net basis. If notice has been received by the Trustee from the ~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ Collateral Manager pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by~~ first class mail, postage prepaid, mailed not less than three ~~(3)~~ Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and ~~the~~ each Rating Agency~~. (f)~~ . The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer ~~may~~shall, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (GOLUB CAPITAL BDC, Inc.)

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes and with the consent of the Collateral ~~Manager)~~Manager and the U.S. Retention Provider, the ~~Issuers~~ Issuer shall reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR with respect to any Class of ~~Re-Pricing Eligible Notes~~ Secured Debt, other than the Class A-1 Debt (such ~~reduction~~reduction with respect to any such Class of Debt, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing~~. (b)~~ . At least 30 20 days (or such shorter period reasonably acceptable to the Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager) prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “Re-Pricing Date”), the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer, ) shall deliver a notice in writing (with a copy to the ~~Trustee (who shall promptly deliver a copy of such notice~~ Collateral Manager, the Trustee, the Collateral Agent, the Loan Agent and the Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (ia) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over LIBOR to be applied with respect to such Class (the “Re-Pricing Rate”); (iib) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (~~iii~~c) specify the price at which ~~Secured Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ not more than 5 Business Days ~~prior to the proposed Re-Pricing Date~~after such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Agent, the Loan Agent, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such ~~notice~~notice (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to more than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise ~~Notices~~Notices (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to less than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the ~~Issuer~~Issuer (subject to the minimum denomination and applicable procedures of DTC), shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible Notes~~ Debt to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ aggregate principal amount of such Debt together with any accrued and unpaid interest thereon, including any Deferred Interest and any accrued and unpaid interest on such Deferred Interest, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture described in this Section 9.8. The Holder of ~~each Re-Pricing Eligible Note~~any Secured Debt, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with the provisions of this Indenture described in this Section ~~9.7~~ 9.8 and agrees to cooperate with the Issuer, the Re-Pricing ~~Intermediary~~ Intermediary, the Trustee, the Collateral Agent and the ~~Trustee~~ Loan Agent to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the ~~Trustee~~ Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a the Majority of the ~~Preferred Shares~~ Subordinated Notes, the Collateral Manager and the U.S. Retention Provider, the Issuer, the Trustee and the Collateral ~~Manager, the Issuers and the Trustee~~ Agent shall have entered into a supplemental indenture, and the Issuer, the Collateral Agent and the Loan Agent shall have entered into an amendment to the Credit Agreement, as applicable, dated as of the Re-Pricing Date solely to decrease the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable~~ LIBOR with respect to the Re-Priced Class; (ii) the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer~~, has received written commitments to purchase~~ ) confirms in writing that all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred pursuant to clause (c) above; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the ~~Issuer~~ Issuer, the Trustee, the Collateral Agent and the ~~Trustee~~ Loan Agent (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the Issuer; and (viv) ~~none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of~~ the Issuer ~~under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules~~ has received written advice from Dechert LLP or ~~the EU Risk Retention Requirements as a result~~ an opinion of counsel of nationally recognized standing that (A) such Re-Pricing ~~unless such Person has consented to~~ will not result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (B) such Re-~~Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of~~ Pricing will not result in the Issuer ~~in connection with such Re-Pricing. (e)~~ being subject to U.S. federal income tax on a net basis. If notice has been received by the ~~Trustee~~ Trustee, the Collateral Agent and the Loan Agent from the ~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ Collateral Manager pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by~~ first class mail, postage prepaid, mailed not less than three ~~(3)~~ Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Debt of the Re-Priced Class at the address in the Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured Notes~~ Debt and the Rating Agency~~. (f)~~ . The Issuer shall direct the ~~Trustee~~ Collateral Agent to segregate payments and take other reasonable steps to effect the Re-Pricing and the ~~Trustee~~ Collateral Agent shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer ~~may~~shall, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The ~~Trustee~~ Trustee, the Collateral Agent and the Loan Agent shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The ~~Trustee~~ Trustee, the Collateral Agent or the Loan Agent may request and rely on an Issuer Order providing direction and any additional information requested by the ~~Trustee~~ Trustee, the Collateral Agent or the Loan Agent in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (GOLUB CAPITAL BDC, Inc.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 thirty (30) days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Notes, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written ~~opinion or~~ advice from ~~Cadwalader, Xxxxxxxxxx & Xxxx~~ Milbank LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax ~~with respect to its~~ on a net ~~income~~ basis (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (Blue Owl Credit Income Corp.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader~~Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Supplemental Indenture (Blue Owl Capital Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 thirty (30) days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Collateral Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Collateral Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Collateral Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written ~~opinion or~~ advice from ~~Cadwalader, Xxxxxxxxxx & Xxxx~~ Xxxxxxx and Xxxxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax ~~with respect to its~~ on a net ~~income~~ basis (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Collateral Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Collateral Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Collateral Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the ~~Preferred Shares (with the consent of the Collateral Manager)~~Subordinated Notes, the Co-Issuers shall reduce the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ Benchmark with respect to any Class of ~~Re-Pricing Eligible Notes~~ Floating Rate Debt (other than the Class A-1 Debt) or the stated rate of interest with respect to any Class of Fixed Rate Debt (other than the Class A-1 Debt) (such ~~reduction~~reduction with respect to any such Class of Secured Debt, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Co-Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Class of Secured ~~Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the ~~Trustee~~ Trustee, the Collateral Agent (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and the Rating Agency)) and the Loan Agent, which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over the Benchmark or the stated rate of interest, as applicable, to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which ~~Secured Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee~~ Trustee, the Collateral Agent (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class)) and the Loan Agent, specifying the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured ~~Notes~~ Debt of the Re-Priced Class held by the ~~non-~~non- consenting Holders (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of ~~each Re-Pricing Eligible Note~~any Secured Debt, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all ~~Re-Pricing Eligible Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and ~~attorney-in-~~attorney in fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the ~~Trustee~~ Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured ~~Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of~~ Co-Issuers, the ~~Preferred Shares~~ Trustee and the Collateral ~~Manager, the Issuers and the Trustee~~ Agent shall have entered into a supplemental ~~indenture,~~ indenture (prepared by or on behalf of the Issuer) dated as of the Re-Pricing Date ~~solely~~ to decrease the spread over the ~~Reference Rate (or, in the case of any Fixed Rate Notes,~~ Benchmark or the stated rate of interest) , applicable to the Re-Priced ~~Class~~Class in accordance with Section 8.1; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received ~~a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written~~ an opinion of ~~other~~ tax counsel of ~~nationally~~ nationally-recognized standing in the United States experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not (A) result in the Issuer becoming subject to U.S. federal income tax with respect to its net income ~~(including any~~ or subject to tax liability ~~imposed~~ under Section 1446 of the ~~Code),~~ Code or (B) result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) the written consent of the Transferor, the Depositor and the Collateral Manager shall have been obtained; and (vi) all expenses of the ~~Issuer~~ Co-Issuers, the Trustee, the Collateral Agent and the ~~Trustee~~ Loan Agent (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the ~~Holders~~ holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Notes and any Contribution) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the ~~Trustee~~ Collateral Agent from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be ~~given~~ provided by the ~~Trustee by email transmission, if available, and~~ Collateral Agent (at the expense of the Issuer) by first class mail, postage prepaid, mailed not less than ~~three (3)~~ 3 Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Debt of the Re-Priced Class at the address in the Note Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the ~~Trustee~~ Collateral Agent at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, the Collateral Agent, the Loan Agent and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the ~~Trustee~~ Collateral Agent, at the expense of the Issuer, shall send such notice to the Holders of ~~Secured Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the ~~Trustee~~ Collateral Agent to segregate payments and take other reasonable steps to effect the Re-Pricing and the ~~Trustee~~ Collateral Agent shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or the Collateral Manager shall deem necessary or desirable to effect a ~~Re-~~Re- Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Trustee and the Collateral Agent shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee and the Collateral Agent may request and rely on an Issuer Order providing direction and any additional information requested ~~by the Trustee~~ in order to effect a Re-~~Pricing~~Pricing and shall have no liability for relying on the same.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference ~~Rate~~ RateBenchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference ~~Rate~~ RateBenchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion ~~or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Supplemental Indenture (Blue Owl Technology Finance Corp.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (with~~ Subordinated Notes and subject to the consent of the Collateral Manager), the ~~Issuers~~ Issuer (or the Collateral Manager on its behalf) shall reduce the spread over the Reference Rate (oror the fixed rate of interest, in the case of any Class of Fixed Rate Notes~~, the stated rate of interest~~) applicable to any Re-Pricing Eligible Class (such reduction with respect to any ~~Class of~~ Re-Pricing Eligible ~~Notes (such reduction~~Class, a “Re-Pricing” and any such Class ~~of Re-Pricing Eligible Notes~~ to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless (i) each condition specified in ~~this~~ Section ~~9.7~~ 9.7(d) is satisfied with respect ~~thereto. For the avoidance~~ thereto and (ii) each Outstanding Secured Note of ~~doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related~~ a Re-Priced Class ~~may~~ shall be ~~modified or supplemented in connection with a~~ subject to the related Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i) a Majority of the Preferred Shares and (ii)~~ the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least ~~30 days~~ 20 Business Days prior to the ~~Business Day fixed~~ date selected by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice (a “Re-Pricing Notice”) in writing (with a copy to the Collateral Manager, the Collateral Administrator, the Trustee ~~(who shall promptly deliver~~ and the Rating Agency then rating a ~~copy~~ Class of ~~such notice~~ Secured Notes) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: : (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Reference Rate (or the fixed rate of interest, in the case of any Class of Fixed Rate Notes) to be applied with respect to such Class (the “Re-Pricing Rate”); , (ii) request each Holder or beneficial owner of the Re-Priced Class to approve the proposed Re-Pricing~~; and~~ , and (iii) specify the price (or the formula for calculating the price) at which ~~Secured~~ Notes of any Holder of the Re-Priced Class ~~which~~ that does not ~~approve~~ consent to the Re-Pricing may be sold and transferred or redeemed pursuant to ~~Section 9.7(c)~~clause (c) below, which, for purposes of such Re-Pricing, ~~shall~~ will be an amount equal to 100% of the ~~applicable Redemption Price after giving effect~~ Aggregate Outstanding Amount of such Notes, plus accrued and unpaid interest thereon (including, in the case of the Deferrable Notes, any Deferred Interest and interest on ~~a pro forma basis to all payments to be made pursuant to the Priority of Payments on~~ any accrued and unpaid Deferred Interest) until the Re-Pricing ~~Date~~ Date, if any, with respect to such ~~date is a Payment Date~~Class (the “Re-Pricing Redemption Price”). (c) In the event any Holders or beneficial owners of the Re-Priced Class do not deliver to the Issuer written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 11 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders or beneficial owners of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting ~~Holders~~Holders or beneficial owners, and shall request ~~that~~ each such consenting Holder or beneficial owner to provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder or beneficial owner would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders or beneficial owners at the Re-Pricing Redemption Price with respect thereto (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to an amount equal to or more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders or beneficial owners, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Notes at the Re-Pricing Redemption Price with respect thereto, without further notice to the non-consenting Holders ~~thereof (for settlement~~ or beneficial owners thereof, on the Re-Pricing ~~Date)~~ Date to the Holders or beneficial owners delivering Exercise Notices with respect thereto, pro rata (subject to reasonable adjustment, as determined by the Re-Pricing Intermediary, to comply with the applicable minimum denomination requirements and the applicable procedures of DTC) based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders or beneficial owners indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders or beneficial owners, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Notes (subject to the minimum denomination requirements and the applicable procedures of DTC), without further notice to the non-consenting Holders or beneficial owners thereof, ~~for settlement~~ on the Re-Pricing Date to the Holders or beneficial owners delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders or beneficial owners shall be sold ~~(for settlement on~~ at the Re-Pricing ~~Date)~~ Redemption Price with respect thereto to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause~~ paragraph (c) shall be made at the ~~applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the~~ Re-Pricing ~~Date if~~ Redemption Price with respect to such ~~date is a Payment Date~~Notes, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture. ~~The~~ Each Holder and each beneficial owner of each ~~Re-Pricing Eligible~~ Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Notes in accordance with the provisions of this Indenture described in this Section 9.7 and agrees to cooperate with the Issuer, the Re-Pricing ~~Intermediary~~ Intermediary, the Trustee and the ~~Trustee~~ Collateral Manager (on behalf of the Issuer) to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than ~~five (5)~~ six Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders~~Holders or beneficial owners. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the~~ Co-Issuers and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date pursuant to Section 8.1 (to be prepared and provided by the Issuer or the Collateral Manager acting on its behalf) solely to ~~decrease~~ reduce the spread over the Reference Rate (oror the fixed rate of interest, in the case of any Class of Fixed Rate Notes~~, the stated rate of interest~~) applicable to the Re-Priced Class; (ii) the ~~Issuer, or the Re-Pricing Intermediary on behalf~~ Rating Agency then rating a Class of ~~the Issuer, has received written commitments to purchase all~~ Secured Notes ~~of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency~~ shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (viii) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing (including in connection with the supplemental indenture described in preceding subclause (i)) shall not exceed (x) the amount of Interest Proceeds ~~expected~~ available to be ~~available~~ applied to the payment thereof under the Priority of Payments on the subsequent Payment Date, after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes and (y) any amounts on deposit in, or to be deposited into, the Reserve Account that are designated to pay expenses incurred in connection with a Re-Pricing, unless such expenses shall have been paid ~~(including from proceeds of any additional issuance of Preferred Shares)~~ or shall be adequately provided for by an entity other than the Issuer; ~~and~~ (viiv) ~~none of~~ the ~~Issuer,~~ Re-Pricing will not cause the Collateral ~~Manager,~~ Manager to violate the Risk Retention ~~Holder or~~ Letter; (v) (A) neither the Issuer nor any ~~“sponsor”~~ Sponsor of the Issuer ~~under the U.S. Risk Retention Rules fails~~ will fail to be in compliance with the U.S. Risk Retention Rules ~~or the EU Risk Retention Requirements~~ as a result of such Re-Pricing and (B) unless ~~such Person has consented~~ it consents to ~~such Re-Pricing. Unless it otherwise consents~~do so (in its sole discretion), none of the Collateral Manager, any Affiliate of the ~~Retention Holder nor~~ Collateral Manager or any Sponsor of ~~their Affiliates~~ the Issuer shall be required to ~~acquire~~ purchase any ~~obligations or securities of the Issuer~~ Notes in connection with such Re-Pricing; and (vi) the Issuer shall have obtained written advice of Dechert LLP or an opinion of nationally recognized tax counsel to the effect that such Re-Pricing will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation or otherwise subject to U.S. federal income tax on a net basis (including any tax liability imposed under Section 1446 of the Code). (e) If ~~notice~~ a Re-Pricing Notice has been received by the Trustee from the ~~Issuer~~Collateral Manager pursuant to this Indenture, or the ~~Re-Pricing Intermediary on behalf~~ Trustee shall forward such notice, at the expense of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than ~~three (3)~~ five Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (~~and, in the case of Global Notes, delivered by electronic transmission to DTC) (~~with a copy to the Collateral Manager), specifying the applicable Re-Pricing ~~Date~~ Date, Re-Pricing Rate and Re-Pricing ~~Rate. Notice of~~ Redemption Price (in each case according to the information set forth in the Re-Pricing ~~shall be given by the Trustee at the expense of the Issuer~~Notice). Failure to give a such notice of five Business Days prior to the proposed Re-~~Pricing~~Pricing Date, or any defect ~~therein~~in such notice, to any Holder or beneficial owner of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall ~~send~~ transmit such notice to the Holders ~~of Secured Notes~~ and the Rating ~~Agency.~~ Agency (~~f) The Issuer shall direct~~ subject, however, to Section 14.3(c)). Notwithstanding anything contained herein to the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable contrary, failure to effect a Re-Pricing~~. In order~~ , whether or not notice of Re-Pricing has been withdrawn, will not constitute an Event of Default and the Holders and beneficial owners of the Notes will not have any cause of action against the Co-Issuers, the Collateral Manager, the Collateral Administrator or the Trustee for any failure to ~~give effect to the~~ complete a Re-Pricing~~, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s)~~. The Trustee shall be entitled to ~~receive,~~ receive and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely upon a written order from the Issuer (or the Collateral Manager on ~~an Issuer Order~~ behalf of the Issuer) providing ~~direction~~ directions and ~~any~~ additional information ~~requested by the Trustee in order~~ necessary to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (Palmer Square Capital BDC Inc.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes, with the consent of the ~~Collateral~~ Asset Manager), the ~~Issuers~~ Issuer (or the Asset Manager on its behalf) shall be required to reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of ~~any~~ the Fixed Rate ~~Notes~~Debt, the stated rate of interest) ~~with respect~~ applicable to any Class of Re-Pricing Eligible Notes (such ~~reduction~~reduction with respect to any such Class of Re-Pricing Eligible Notes, a “Re-Pricing” and any such Class ~~of Re-Pricing Eligible Notes to be~~ that becomes subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless (i) each condition specified in this Section ~~9.7~~ 9.6 is satisfied ~~with respect thereto. For the avoidance~~ and (ii) any Outstanding Debt of ~~doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related~~ a Re-Priced Class ~~may~~ will be ~~modified or supplemented in connection with a~~ subject to the related Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i) a Majority of~~ the ~~Preferred Shares and (ii) the Collateral~~ Asset Manager ~~and such Re-Pricing Intermediary shall~~ to assist the Issuer in effecting the Re-Pricing. Additionally, if so directed in writing by the Holders of a Majority of the Subordinated Notes in connection with a Re-Pricing of any of the Re-Pricing Eligible Notes, the Issuer may, with prompt written notice to the Collateral Trustee and the written consent of the Asset Manager, extend the end of the Non-Call Period for all Classes to a date after the effective date of such Re-Pricing. (b) At least ~~30 days~~ 20 Business Days prior to the ~~Business Day fixed~~ date selected by a Majority of the ~~Preferred Shares~~ Subordinated Notes for ~~any proposed~~ the Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice (the “Re-Pricing Notice”) in writing (with a copy to the Asset Manager and the Rating Agency then rating the Class of Debt subject to such Re-Pricing) to the Collateral Trustee (who shall ~~promptly deliver a copy of~~ forward such notice to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: : (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Benchmark (or, in the case of the Fixed Rate Debt, the stated rate of interest) to be applied with respect to such Class (the “Re-Pricing Rate”); , (ii) request each Holder or beneficial owner of the Note of the Re-Priced Class to approve the proposed Re-Pricing~~; and~~ , and (iii) specify the price equal to the outstanding principal amount plus accrued interest (including any Defaulted Interest (and any interest thereon) to (but excluding) the Re-Pricing Date at which ~~Secured~~ Notes of any Holder or beneficial owner of the Debt of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to~~ purchase price of such Notes (the ~~Priority of Payments on the~~ “Re-Pricing ~~Date if such date is a Payment Date~~Redemption Price”). (c) In the event that any Holders or beneficial owners of the Re-Priced Class do not deliver to the Issuer written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders or beneficial owners of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting ~~Holders~~Holders or beneficial owners, and shall request ~~that~~ each such consenting Holder or beneficial owner to provide written notice to the Issuer, the Collateral Trustee, the ~~Collateral~~ Asset Manager and the Re-Pricing Intermediary if such Holder or beneficial owner would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders or beneficial owners at the Re-Pricing Redemption Price with respect thereto (each such notice, an “Exercise Notice”) within five ~~(5)~~ Business Days after receipt of such notice. . (d) In the event the Issuer ~~shall receive~~ receives Exercise Notices with respect to an amount equal to or more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting ~~Holders~~Holders or beneficial owners, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Notes at the Re-Pricing Redemption Price with respect thereto, without further notice to the non-consenting Holders ~~thereof (for settlement~~ or beneficial owners thereof, on the Re-Pricing ~~Date)~~ Date to the Holders or beneficial owners delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders or beneficial owners who indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting ~~Holders~~Holders or beneficial owners, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders or beneficial owners thereof, ~~for settlement~~ on the Re-Pricing Date to the Holders or beneficial owners delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders or beneficial owners shall be sold ~~(for settlement on~~ at the Re-Pricing ~~Date)~~ Redemption Price with respect thereto to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at the ~~applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the~~ Re-Pricing ~~Date if~~ Redemption Price with respect to such ~~date is a Payment Date~~Notes, and shall only be effected ~~only~~ if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture. ~~The~~ Each Holder and beneficial owner of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Re-Pricing Eligible Notes in accordance with the provisions of this Indenture described in this Section ~~9.7~~ and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the ~~Collateral~~ Asset Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders. For~~ Holders or beneficial owners (the ~~avoidance of doubt, such~~ “Re-Pricing ~~will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders~~Confirmation Notice”). (de) The Issuer shall not effect any proposed Re-Pricing ~~unless:~~ unless (as certified by the Issuer or the Asset Manager on its behalf): (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares~~ Issuer and the Collateral ~~Manager, the Issuers and the~~ Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date ~~solely~~ pursuant to ~~decrease~~ Section 8.1 to reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of ~~any~~ the Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the ~~Issuer, or~~ Rating Agency then rating the ~~Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes~~ Debt of the Re-Priced Class ~~held by non-consenting Holders; (iii) the Rating Agency~~ shall have been notified of such Re-Pricing; and (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (viii) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing (including in connection with the related supplemental indenture) shall not exceed the amount of Interest Proceeds ~~expected~~ available to be ~~available~~ applied to the payment thereof under the Priority of Payments on the subsequent Payment Date, after taking into account all amounts required to be paid pursuant to the Priority of Payments on ~~the~~ such subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes and amounts on deposit in the Contribution Account designated for such use, unless such expenses shall have been paid ~~(including from proceeds of any additional issuance of Preferred Shares)~~ or shall be adequately provided for by an entity other than the Issuer~~; and~~ . (vif) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as If a ~~result of such~~ Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice Confirmation Notice has been received by the Collateral Trustee from the ~~Issuer~~Issuer pursuant to this Indenture, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, then notice of a Re-Pricing shall be given by the ~~Trustee by email transmission~~Collateral Trustee, ~~if available~~at the expense of the Issuer, ~~and by first class mail, postage prepaid, mailed not less than three (3)~~ at least 10 Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ the Debt of the Re-Priced Class at ~~the~~ its address in the Note Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the ~~Collateral~~ Asset Manager), specifying the applicable Re-Pricing ~~Date~~ Date, Re-Pricing Rate and Re-Pricing ~~Rate. Notice of~~ Redemption Price (in each case according to the information set forth in the Re-Pricing ~~shall be given by the Trustee at the expense of the Issuer~~Notice). Failure to give a notice of a Re-Pricing, or any defect therein, to any Holder or beneficial owner of any Debt of the Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Collateral Trustee, and the ~~Collateral~~ Asset Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee shall ~~send~~ transmit such notice to the Holders of ~~Secured Notes~~ the proposed Re-Priced Class and the Rating ~~Agency. (f) The Issuer shall direct~~ Agency then rating the ~~Trustee~~ proposed Re-Priced Class. Notwithstanding anything contained herein to ~~segregate payments and take other reasonable steps~~ the contrary, failure to effect ~~the~~ a Re-Pricing, whether or not notice of Re-Pricing ~~and the~~ has been withdrawn, will not constitute an Event of Default. The Collateral Trustee shall ~~have the authority~~ be entitled to ~~take such actions as~~ receive and may ~~be directed by the Issuer~~ request and rely upon a written order or ~~the Collateral Manager as~~ request from the Issuer (or the ~~Re-Pricing Intermediary~~ Asset Manager on behalf of the Issuer) ~~or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain~~ providing directions and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information ~~requested by the Trustee in order~~ necessary to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture and Security Agreement (Ares Capital Corp)

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares~~ Subordinated Notes (with the prior written consent of the Collateral Manager) or the Collateral Manager (with the prior written consent of a Majority of the Subordinated Notes), the ~~Issuers~~ Issuer (or the Collateral Manager on its behalf) shall reduce the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR applicable with respect to ~~any Class of~~ the Re-Pricing Eligible Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “"Re-Pricing” " and any ~~Class of Re-Pricing Eligible~~ Secured Notes to be subject to a Re-Pricing, a “"Re-Priced Class”"); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the ~~Interest~~ Applicable Periodic Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “"Re-Pricing Intermediary”") upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing~~. (b)~~ . At least ~~30 days~~ 20 Business Days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (such Business Day, the “"Re-Pricing Date”"), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing (with a copy to the Collateral Manager, the Retention Holder, the Trustee ~~(who shall promptly deliver a copy of such notice~~ and the Rating Agencies) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest Rate to be applied~~ spread over LIBOR with respect to ~~such~~ the Re-Priced Class (the “"Re-Pricing Rate”");, (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; , and (iii) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be an amount equal to the ~~applicable Redemption Price~~ Aggregate Principal Amount of such Notes together with any accrued and unpaid interest thereon, including any Periodic Rate Shortfall Amount, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the Aggregate ~~Outstanding~~ Principal Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “"Exercise Notice”") within five ~~(5)~~ Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate ~~Outstanding~~ Principal Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate ~~Outstanding~~ Principal Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate ~~Outstanding~~ Principal Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Issuer or a Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ Aggregate Principal Amount of such Notes together with any accrued and unpaid interest thereon, including any Periodic Rate Shortfall Amount, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each ~~Re-Pricing Eligible~~ Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Notes in accordance with this ~~Section 9.7~~ section and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than ~~five (5)~~ four Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not effect any proposed Re-Pricing unless: : (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the~~ Co-Issuers and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing ~~Date~~ Date, solely to decrease the spread over ~~the Reference Rate (or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ LIBOR applicable to the Re-Priced Class; ; (ii) ~~the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase~~ all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders;~~ Holders have been sold and transferred pursuant to clause (iii) above; (iii) the Rating ~~Agency~~ Agencies shall have been notified of such Re-Pricing; ; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid ~~(including from proceeds of any additional issuance of Preferred Shares)~~ or shall be adequately provided for by an entity other than the ~~Issuer~~Issuer or from the proceeds of any Contribution; ~~and~~ and (viA) ~~none of~~ neither the ~~Issuer, the Collateral Manager, the Retention Holder or~~ Issuer nor any ~~“sponsor”~~ Sponsor of the Issuer ~~under the U.S. Risk Retention Rules fails~~ shall fail to be in compliance with the U.S. Risk Retention Rules ~~or the EU Risk Retention Requirements~~ as a result of such Re-Pricing ~~unless such Person has consented~~ as determined by the Collateral Manager at the time a direction to ~~such~~ effect a Re-~~Pricing. Unless~~ Pricing is delivered and with respect to the law and regulations then applicable and (B) unless it otherwise ~~consents~~consents to do so, none of the Collateral Manager, any Affiliate of the Collateral Manager, the Retention Holder ~~nor~~ or any Sponsor of ~~their Affiliates~~ the Issuer shall be required to acquire any ~~obligations or securities of the Issuer~~ Notes in connection with ~~such~~ a Re-Pricing~~. (e)~~ . If notice has been received by the Trustee from the ~~Issuer,~~ Issuer (or the ~~Re-Pricing Intermediary~~ Collateral Manager on ~~behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ its behalf) pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a Re-Pricing shall be given by the Trustee by ~~email transmission, if available, and by first~~ first-class mail, postage prepaid, mailed not less than ~~three (3)~~ 10 Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by (A) a Majority of the ~~Preferred Shares~~ Subordinated Notes (if such Re-Pricing was directed by a Majority of the Subordinated Notes) or (B) the Collateral Manager (if such Re-Pricing was directed by the Collateral Manager), in each case on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and (unless such withdrawal direction is given by the Collateral Manager) the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and the Rating ~~Agency. (f)~~ Agencies. The ~~Issuer~~ Collateral Manager shall ~~direct~~ determine and certify to the Trustee that, with respect to ~~segregate payments~~ any Re-Priced Class, the Issuer has caused to be delivered to the Trustee an opinion of Pxxx Xxxxxxxx LLP or Sxxxxx & Kxxxxx LLP or other tax counsel of nationally recognized standing in the United States experienced in such matters, in form and ~~take other reasonable steps~~ substance satisfactory to the Collateral Manager to the effect that (A) the Re-Pricing will not (a) result in the Issuer becoming subject to U.S. federal income taxation with respect to its net income, (b) result in the Issuer being treated as being engaged in a trade or business within the United States, or (c) have a material adverse effect on the tax treatment of the Issuer or the tax consequences to the holders of any Class of Notes outstanding at the time of such Re-Pricing that are not subject to the Re-Pricing and (B) such Re-Priced Class that is pari passu with the Class D Notes will, and any Re-Priced Class that is pari passu with any Class E Notes should, be treated as debt for U.S. federal income tax purposes. The Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral ~~Manager~~ Manager, as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (NewStar Financial, Inc.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Notes, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader~~Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call ~~Period~~Period for any Class of Re-Pricing Eligible Debt, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes with the consent of the Collateral Manager), the ~~Issuers shall~~ Issuer may reduce the spread over the Reference Rate and/or fixed interest rate applicable with respect to such Class of Re-Pricing Eligible Debt (~~or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ such reduction with respect to any Class of ~~Re-Pricing Eligible Notes (such reduction~~Debt, a “"Re-Pricing” " and any such Class of ~~Re-Pricing Eligible Notes~~ Secured Debt to be subject to a Re-Pricing, a “"Re-Priced Class”"); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Collateral Manager on behalf of the Issuer may engage a broker-dealer (the “"Re-Pricing Intermediary”") upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. Each Holder of Re-Pricing Eligible Debt, by its acceptance of an interest in such Debt, agrees to cooperate with the Issuer, the Collateral Manager, the Re-Pricing Intermediary (if any) and the Collateral Trustee in connection with any Re-Pricing and acknowledges that its Re-Pricing Eligible Debt may be sold or redeemed with or without such Holder's consent and that the sole alternative to any such Re-Pricing or redemption is to commit to sell its interest in the Notes of the Re-Priced Class. In connection with a Re-Pricing, the Issuer may issue Re-Pricing Replacement Debt, the proceeds of which shall be used to redeem non-consenting Holders in accordance with Section 9.8(c) (Optional Re-Pricing). (b) At least ~~30 days~~ 20 Business Days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “"Re-Pricing Date”"), the Issuer, or the 202 Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice (the "Re-Pricing Notice") in writing (with a copy to the Collateral Manager, the Collateral Trustee ~~(who shall promptly deliver a copy of such notice~~ and the Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Reference Rate and/or fixed interest rate (or range of spreads and/or fixed interest rates) to be applied with respect to such Class (the “"Re-Pricing Rate”");, (ii) request each Holder of the Re-Priced Class consent to ~~approve~~ the proposed Re-~~Pricing;~~ Pricing and indicate which Re-Pricing Rate (or range thereof) they have consented to, and (iii) specify the price ~~at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c),~~ (which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price ~~after giving effect on a pro forma basis~~ of such Debt) at which Secured Debt of any Holder of the Re-Priced Class who does not consent to ~~all payments to be made pursuant to the Priority of Payments on~~ the Re-Pricing ~~Date if~~ may be (x) sold and transferred pursuant to Section 9.8(c) (Optional Re-Pricing) or (y) redeemed with Re-Pricing Proceeds and all funds available for such ~~date is a Payment Date~~purpose. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 15 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by such non-consenting ~~Holders~~Holders (such notice, the "Non-Consent Notice"), and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to (A) purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (such purchase and sale, a "Re-Pricing Transfer") and/or (B) purchase Re-Pricing Replacement Debt with respect thereto at the price specified in the Re-Pricing Notice or Non-Consent Notice, as applicable, and (C) in each case, the Aggregate Outstanding Amount of such Debt and/or Re-Pricing Replacement Debt that it would agree to acquire (each such notice, an “"Exercise Notice”") within five (5) Business Days after receipt of ~~such notice~~the Non-Consent Notice. In the event the Issuer shall receive Exercise Notices with respect to ~~more~~ Debt of the Re-Priced Class in an amount greater than or equal to the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, ~~shall cause the sale and transfer~~ may effect Re-Pricing Transfers of such ~~Secured Notes~~Re-Pricing Eligible Debt or issue Re-Pricing Replacement Debt, as applicable, without further notice to the non-consenting Holders ~~thereof (for settlement~~ thereof, on the Re-Pricing ~~Date)~~ Date to the Holders delivering Exercise Notices with respect thereto, pro rata (subject to the applicable Authorized Denomination requirements) based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall ~~cause the sale and transfer~~ conduct a Re-Pricing Transfer of such ~~Secured Notes~~Re-Pricing Eligible Debt or issue Re-Pricing Replacement Debt, as applicable, without further notice 203 to the non-consenting Holders thereof, ~~for settlement~~ on the Re-Pricing ~~Date to the Holders delivering Exercise Notices with respect thereto, and any~~ Date. Any excess ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by a non-consenting ~~Holders~~ Holder after giving effect to the Exercise Notices, Re-Pricing Replacement Debt and issuance of Re-Pricing Replacement Debt shall be sold ~~(for settlement on the Re-Pricing Date)~~ to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to~~ or by the Collateral Manager on behalf of the Issuer. All Re-Pricing Transfers and sales of Re-Pricing ~~Eligible Notes~~ Replacement Debt to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price ~~after giving effect on a pro forma basis~~ with respect to ~~all payments to be made pursuant to the Priority of Payments on the~~ such Re-Pricing ~~Date if such date is a Payment Date~~Eligible Debt, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with the consent of a Majority of the Preferred Shares and the Collateral Manager,~~ the Issuers and the Collateral Trustee shall have entered into a supplemental ~~indenture,~~ indenture pursuant to Section 8.2(c) (Supplemental Indentures With Consent of Holders of Debt) dated as of the Re-Pricing Date ~~solely~~ to ~~decrease~~ modify the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated~~ and/or fixed interest rate ~~of interest)~~ applicable to the Re-Priced ~~Class~~Class and/or, in the case of the issuance of Re-Pricing Replacement Debt, to issue such Re-Pricing Replacement Debt and to reflect any necessary changes to the definitions of "Non-Call Period" or "Redemption Price" of the Re-Priced Class to be made pursuant to Section 9.8(f) (Optional Re-Pricing); (ii) ~~the Issuer, or~~ based solely on a certification of the Re-Pricing Intermediary or the Collateral Manager (on behalf of the Issuer), ~~has received written commitments to purchase~~ the Collateral Trustee confirms in writing that all ~~Secured Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred or redeemed on the same day; (iii) the Rating Agency shall have been notified of such Re-~~Pricing~~Pricing in accordance with Section 14.3 (Notices, etc., to Collateral Trustee, the Loan Agent, the Issuers, the Collateral Manager, the Initial Purchaser, the Collateral Administrator, the Paying Agent, each Hedge Counterparty and the Rating Agency); (iv) ~~the Issuer has received a~~ written ~~opinion or~~ advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or ~~Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx~~ Dechert LLP, or ~~a written~~ an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, in the form and substance satisfactory to the Collateral Manager, is delivered to the Issuer to the effect that ~~such~~ the Re-Pricing will not ~~result in~~ cause the Issuer ~~becoming subject~~ to ~~U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code),~~ be classified as an association or ~~result in the Issuer being treated as~~ a publicly traded ~~partnership~~ partnership, in each case, that is taxable as a corporation for U.S. federal income tax purposes; , or to have any U.S. federal withholding tax liability under Section 1446 of the Code and (v) all due and payable expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid or shall be adequately provided for (including by application of Section 11.1(a)(i)(O) (Disbursements of Monies from Payment Account), Section 11.1(a)(iii)(B) (Disbursements of Monies from Payment Account) from amounts available in the Supplemental Reserve Account or from the proceeds of ~~any~~ the additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Collateral Trustee ~~from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments~~ pursuant to ~~purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders~~this Indenture, notice of a Re-Pricing shall be given by the Collateral Trustee ~~by email transmission, if available, and~~ (at the direction of the Issuer) by first class mail, postage prepaid, mailed not less than three ~~(3)~~ Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Re-Pricing Eligible Debt of the Re-Priced Class at the address in the Register (~~and, in the case of Global Notes, delivered by electronic transmission to DTC) (~~with a copy to the Collateral Manager, the Collateral Trustee and the Rating Agency), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense and direction of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced 204 Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes or the Collateral Manager on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee and~~ Collateral Trustee, the Collateral Manager (if applicable) and the Re-Pricing Intermediary for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee (at the direction of the Issuer) shall send such notice to the Holders of ~~Secured Notes~~ Re-Pricing Eligible Debt and the Rating Agency. (f) In connection with a Re-Pricing (x) the Non-Call Period for the Re-Priced Class may be extended or imposed from such Re-Pricing Date at the direction of the Collateral Manager with the consent of a Majority of the Subordinated Notes prior to such Re-Pricing and/or (y) the definition of "Redemption Price" may be revised, pursuant to a supplemental indenture entered into under Section 8.2(c) (Supplemental Indentures With Consent of Holders of Debt), to reflect any agreed upon make-whole payments for the applicable Re-Priced Class at the direction of the Collateral Manager with the approval of a Majority of the Subordinated Notes. The Issuer ~~shall~~ will direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-~~Pricing~~ Pricing, and the Collateral Trustee ~~shall~~ will have the authority to take such actions as may be directed by the Issuer or the Collateral Manager ~~as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable~~ to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by ~~such consenting or~~ non-consenting ~~Holder(s). The Trustee shall be entitled~~ Holders and Holders consenting to ~~receive, and shall be fully protected in relying upon an Opinion of Counsel stating that~~ the Re-Pricing ~~is authorized or permitted~~ and otherwise take the actions contemplated by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Section 9.8 (Optional Re-Pricing).

Appears in 1 contract

Samples: Indenture (Barings Private Credit Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “"Re-Pricing” " and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “"Re-Priced Class”"); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured~~ Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “"Re-Pricing Intermediary”") upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “"Re-Pricing Date”"), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “"Re-Pricing Rate”"); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “"Exercise Notice”") within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Notes, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written ~~opinion or~~ advice from ~~Cadwalader, Xxxxxxxxxx & Xxxx~~ Milbank LLP or ~~Xxxxxx Xxxxxxxx Xxxxx~~ White & ~~Xxxxxxxx~~ Case LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “"sponsor” " of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (MSD Investment Corp.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion ~~or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion~~ of ~~other~~ tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Supplemental Indenture (Blue Owl Technology Finance Corp.)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the ~~Preferred Shares~~ Subordinated Securities (with the consent of the Collateral Manager), the ~~Issuers~~ Applicable Issuer shall reduce the spread over ~~the Reference Rate~~ LIBOR (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Applicable Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the ~~Preferred Shares~~ Subordinated Securities and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Securities for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Collateral Trustee and the Loan Agent (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Loan Agent, the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Collateral Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Collateral Trustee, the Loan Agent, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured ~~Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Collateral Trustee to ~~effect~~ effectuate such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Collateral Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured ~~Notes~~ Debt of the Re-Priced Class, including the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the ~~Preferred Shares~~ Subordinated Securities and the Collateral Manager, the Issuers and the Collateral Trustee shall have entered into a supplemental ~~indenture~~indenture and the Issuers, the Collateral Trustee and the Loan Agent shall have entered into an amendment to the Credit Agreement, as applicable, dated as of the Re-Pricing Date solely to decrease the spread over ~~the Reference Rate~~ LIBOR (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, Tax Advice to the effect that (1) such Re-Pricing will not ~~result in~~ cause the Issuer ~~becoming subject~~ to have any U.S. federal income ~~tax with respect to its net income (including any~~ or withholding tax liability ~~imposed under Section 1446~~ or otherwise have a material adverse effect on the tax treatment of the ~~Code),~~ Issuer and (2) any Class A Debt or ~~result in the Issuer being~~ Class B Notes subject to Re-Pricing will be treated as ~~a publicly traded partnership taxable as a corporation~~ debt for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Collateral Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Securities, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Securities) or shall be adequately provided for by an entity other than the Issuer; and (vi) ~~none of~~ the Issuer, the Collateral Manager, the Retention Holder or and any “sponsor” of the Issuer under the U.S. Risk Retention Rules ~~fails to be~~ and the EU Risk Retention Requirements is in compliance with the U.S. Risk Retention Rules or and the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been timely received by the Collateral Trustee and the Loan Agent from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Collateral Trustee and the Loan Agent by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Secured Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Collateral Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Securities on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Collateral Trustee, the Loan Agent and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Collateral Trustee and the Loan Agent shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Subordinated Securities and the Rating Agency. (f) The Issuer shall direct the Collateral Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Collateral Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Collateral Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Collateral Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Collateral Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes, with the consent of the ~~Collateral~~ Asset Manager), the ~~Issuers~~ Issuer (or the Asset Manager on its behalf) shall be required to reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of ~~any~~ the Fixed Rate Notes, the stated rate of interest) ~~with respect~~ applicable to any Class of Re-Pricing Eligible Notes (such ~~reduction, a “Re-Pricing” and~~ reduction with respect to any such Class of Re-Pricing Eligible ~~Notes to be~~ Notes, a "Re-Pricing" and any such Class that becomes subject to a Re-Pricing, a “"Re-Priced Class”"); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless (i) each condition specified in this Section ~~9.7~~ 9.6 is satisfied ~~with respect thereto. For the avoidance~~ and (ii) each Outstanding Note of ~~doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related~~ a Re-Priced Class ~~may~~ will be ~~modified or supplemented in connection with a~~ subject to the related Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “"Re-Pricing Intermediary”") upon the recommendation and subject to the approval of ~~(i) a Majority of~~ the ~~Preferred Shares and (ii) the Collateral~~ Asset Manager ~~and such Re-Pricing Intermediary shall~~ to assist the Issuer in effecting the Re-Pricing. Additionally, if so directed in writing by the Holders of a Majority of the Subordinated Notes in connection with a Re-Pricing of any of the Re-Pricing Eligible Notes, the Issuer may, with prompt written notice to the Trustee and the written consent of the Asset Manager, extend the end of the Non-Call Period for all Classes to a date after the effective date of such Re-Pricing. (b) At least ~~30 days~~ 20 Business Days prior to the ~~Business Day fixed~~ date selected by a Majority of the ~~Preferred Shares~~ Subordinated Notes for ~~any proposed~~ the Re-Pricing (the “"Re-Pricing Date”"), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice (the "Re-Pricing Notice") in writing (with a copy to the Asset Manager and the Rating Agency then rating the Class of Notes subject to such Re-Pricing) to the Trustee (who shall ~~promptly deliver a copy of~~ forward such notice to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency~~Class), which notice shall: : (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Benchmark (or, in the case of the Fixed Rate Notes, the stated rate of interest) to be applied with respect to such Class (the “"Re-Pricing Rate”"); , (ii) request each Holder or beneficial owner of the Note of the Re-Priced Class to approve the proposed Re-Pricing~~; and~~ , and (~~iii) specify~~ iii)specify the price equal to the outstanding principal amount plus accrued interest (including any Defaulted Interest (and any interest thereon) to (but excluding) the Re-Pricing Date at which ~~Secured~~ Notes of any Holder or beneficial owner of the Notes of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to~~ purchase price of such Notes (the ~~Priority of Payments on the~~ "Re-Pricing ~~Date if such date is a Payment Date~~Redemption Price"). (c) In the event that any Holders or beneficial owners of the Re-Priced Class do not deliver to the Issuer written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 10 Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders or beneficial owners of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting ~~Holders~~Holders or beneficial owners, and shall request ~~that~~ each such consenting Holder or beneficial owner to provide written notice to the Issuer, the Trustee, the ~~Collateral~~ Asset Manager and the Re-Pricing Intermediary if such Holder or beneficial owner would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders or beneficial owners at the Re-Pricing Redemption Price with respect thereto (each such notice, an “"Exercise Notice”") within five ~~(5)~~ Business Days after receipt of such notice. . (d) In the event the Issuer ~~shall receive~~ receives Exercise Notices with respect to an amount equal to or more than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders or beneficial owners, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Notes at the Re-Pricing Redemption Price with respect thereto, without further notice to the non-consenting Holders ~~thereof (for settlement~~ or beneficial owners thereof, on the Re-Pricing ~~Date)~~ Date to the Holders or beneficial owners delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured~~ Notes such Holders or beneficial owners who indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders or beneficial owners, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders or beneficial owners thereof, ~~for settlement~~ on the Re-Pricing Date to the Holders or beneficial owners delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders or beneficial owners shall be sold ~~(for settlement on~~ at the Re-Pricing ~~Date)~~ Redemption Price with respect thereto to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at the ~~applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the~~ Re-Pricing ~~Date if~~ Redemption Price with respect to such ~~date is a Payment Date~~Notes, and shall only be effected ~~only~~ if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture. ~~The~~ Each Holder and beneficial owner of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured~~ Re-Pricing Eligible Notes in accordance with the provisions of this Indenture described in this Section ~~9.7~~ and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the ~~Collateral~~ Asset Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders. For~~ Holders or beneficial owners (the ~~avoidance of doubt, such~~ "Re-Pricing ~~will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders~~Confirmation Notice"). (de) The Issuer shall not effect any proposed Re-Pricing ~~unless:~~ unless (as certified by the Issuer or the Asset Manager on its behalf): (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date ~~solely~~ pursuant to ~~decrease~~ Section 8.1 to reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of ~~any~~ the Fixed Rate Notes, the stated rate of interest) applicable to the Re-Priced Class; (ii) the ~~Issuer, or~~ Rating Agency then rating the ~~Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured~~ Notes of the Re-Priced Class ~~held by non-consenting Holders; (iii) the Rating Agency~~ shall have been notified of such Re-Pricing; and (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (viii) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing (including in connection with the related supplemental indenture) shall not exceed the amount of Interest Proceeds ~~expected~~ available to be ~~available~~ applied to the payment thereof under the Priority of Payments on the subsequent Payment Date, after taking into account all amounts required to be paid pursuant to the Priority of Payments on ~~the~~ such subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes and amounts on deposit in the Contribution Account designated for such use, unless such expenses shall have been paid ~~(including from proceeds of any additional issuance of Preferred Shares)~~ or shall be adequately provided for by an entity other than the Issuer~~; and~~ . (vif) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as If a ~~result of such~~ Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice Confirmation Notice has been received by the Trustee from the ~~Issuer~~Issuer pursuant to this Indenture, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, then notice of a Re-Pricing shall be given by the ~~Trustee by email transmission~~Trustee, ~~if available~~at the expense of the Issuer, ~~and by first class mail, postage prepaid, mailed not less than three (3)~~ at least 10 Business Days prior to the proposed Re-Pricing Date, to each Holder of the Notes of the Re-Priced Class at ~~the~~ its address in the Note Register ~~(and, in the case of Global Notes, delivered by electronic transmission to DTC)~~ (with a copy to the ~~Collateral~~ Asset Manager), specifying the applicable Re-Pricing ~~Date~~ Date, Re-Pricing Rate and Re-Pricing ~~Rate. Notice of~~ Redemption Price (in each case according to the information set forth in the Re-Pricing ~~shall be given by the Trustee at the expense of the Issuer~~Notice). Failure to give a notice of a Re-Pricing, or any defect therein, to any Holder or beneficial owner of any Notes of the Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, and the ~~Collateral~~ Asset Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall ~~send~~ transmit such notice to the Holders of ~~Secured Notes~~ the proposed Re-Priced Class and the Rating ~~Agency. (f) The Issuer shall direct~~ Agency then rating the ~~Trustee to segregate payments and take other reasonable steps to effect the~~ proposed Re-~~Pricing and~~ Priced Class. Notwithstanding anything contained herein to the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable contrary, failure to effect a Re-Pricing~~. In order to give effect to the~~ , whether or not notice of Re-~~Pricing~~Pricing has been withdrawn, ~~the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes~~ will not constitute an Event of ~~each Class held by such consenting or non-consenting Holder(s)~~Default. The Trustee shall be entitled to ~~receive,~~ receive and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely upon a written order or request from the Issuer (or the Asset Manager on ~~an Issuer Order~~ behalf of the Issuer) providing ~~direction~~ directions and ~~any~~ additional information ~~requested by the Trustee in order~~ necessary to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (Ares Capital Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) with respect to any Class of Re-Pricing Eligible ~~Notes~~ Debt (such reduction, a “Re-Pricing” and any Class of Re-Pricing Eligible ~~Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured ~~Notes~~ Debt other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured ~~Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured ~~Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured ~~Notes~~Debt, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible ~~Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible ~~Note~~Debt, by its acceptance of an interest in the Re-Pricing Eligible ~~Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible ~~Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured ~~Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured ~~Notes~~ Debt of the Re-Priced Class, including the Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate~~ Benchmark (or, in the case of any Fixed Rate ~~Notes~~Debt, the stated rate of interest) applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader~~Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU EU/UK Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or ~~securities~~ debt of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured ~~Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of ~~Notes~~ Secured Debt of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured ~~Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured ~~Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

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

Optional Re-Pricing. ~~(a)~~ On any Business Day after the Non-Call Period, at the ~~written~~ direction of a Majority of the ~~Preferred Shares (~~Subordinated Notes and with the consent of the Collateral ~~Manager)~~Manager and the U.S. Retention Provider, the ~~Issuers~~ Issuer shall reduce the spread over the ~~Reference Rate (or, in~~ Benchmark or the ~~case of any Fixed Rate Notes, the stated~~ fixed interest rate ~~of interest)~~ applicable with respect to any Class of Re-Pricing Eligible Notes (such ~~reduction~~reduction with respect to any such Class of Notes, a “"Re-Pricing” " and any Class of ~~Re-Pricing Eligible~~ Secured Notes to be subject to a Re-Pricing, a “"Re-Priced Class”"); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified ~~in this Section 9.7~~ below is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “"Re-Pricing Intermediary”") upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing~~. (b)~~ . At least 30 20 days (or such shorter period reasonably acceptable to the Trustee and the Collateral Manager) prior to the Business Day fixed by a Majority of the ~~Preferred Shares~~ Subordinated Notes for any proposed Re-Pricing (the “"Re-Pricing Date”"), the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer, ) shall deliver a notice in writing (with a copy to the Collateral Manager, the Trustee ~~(who shall promptly deliver a copy of such notice~~ and each Rating Agency) to each Holder of the proposed Re-Priced ~~Class(es), the Collateral Manager and the Rating Agency)~~Class, which notice shall: (ia) specify the proposed Re-Pricing Date and the revised ~~Interest Rate~~ spread over the Benchmark or the fixed interest rate to be applied with respect to such Class (the “"Re-Pricing Rate”"); (iib) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (~~iii~~c) specify the price at which ~~Secured~~ Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to ~~Section 9.7(c)~~the following paragraph, which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date~~. (c)~~ . In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ not more than 5 Business Days ~~prior to the proposed Re-Pricing Date~~after such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the ~~Trustee (who shall promptly deliver a copy of such notice to the~~ consenting Holders of the Re-Priced Class), specifying the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured~~ Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “"Exercise Notice”") within five ~~(5)~~ Business Days after receipt of such ~~notice~~notice (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to more than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes such Holders indicated an interest in purchasing pursuant to their Exercise ~~Notices~~Notices (subject to the minimum denomination and applicable procedures of DTC). In the event the Issuer shall receive Exercise Notices with respect to less than the ~~Aggregate Outstanding Amount~~ aggregate principal amount of the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the ~~Issuer~~Issuer (subject to the minimum denomination and applicable procedures of DTC), shall cause the sale and transfer of such ~~Secured~~ Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to ~~one or more transferees~~ a transferee designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible~~ Notes to be effected pursuant to this ~~clause (c)~~ paragraph shall be made at a price equal to the ~~applicable Redemption Price~~ aggregate principal amount of such Notes together with any accrued and unpaid interest thereon, in each case after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing ~~Date if such date is a Payment~~ Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions ~~hereof~~of this Indenture described in this Section 9.8. The Holder of each ~~Re-Pricing Eligible~~ Secured Note, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Secured Notes, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with the provisions of this Indenture described in this Section ~~9.7~~ 9.8 and agrees to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such ~~sale~~ sales and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five ~~(5)~~ Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured~~ Notes of the Re-Priced Class, including the ~~Secured~~ Notes of the Re-Priced Class held by non-consenting Holders~~. (d)~~ . The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a the Majority of the ~~Preferred Shares~~ Subordinated Notes, the Collateral Manager and the ~~Collateral Manager~~U.S. Retention Provider, the ~~Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date solely to decrease the spread over the ~~Reference Rate (or, in~~ Benchmark or the ~~case of any Fixed Rate Notes, the stated~~ fixed interest rate ~~of interest)~~ applicable to the Re-Priced Class; (ii) the ~~Issuer,~~ Issuer (or the Re-Pricing Intermediary on behalf of the Issuer~~, has received written commitments to purchase~~ ) confirms in writing that all ~~Secured~~ Notes of the Re-Priced Class held by non-consenting ~~Holders~~Holders have been sold and transferred pursuant to clause (c) above; (iii) ~~the~~ each Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from Cadwalader, Xxxxxxxxxx & Xxxx LLP or Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of ~~any~~ the additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the Issuer; and (viv) ~~none of the Issuer, the Collateral Manager, the Retention Holder or any “sponsor” of~~ the Issuer ~~under~~ has received written advice from Dechert LLP or Cadwalader, Wxxxxxxxxx & Txxx LLP or an opinion of counsel of nationally recognized standing to the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or effect that the Re-Pricing ~~Intermediary~~ will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or otherwise subject to U.S. federal income tax on ~~behalf~~ a net basis (including any withholding tax liability under Section 1446 of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral ManagerCode)~~, specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer~~. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the ~~Preferred Shares~~ Subordinated Notes on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the ~~Trustee~~ Trustee, and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured~~ Notes and ~~the~~ each Rating Agency~~. (f)~~ . The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer ~~may~~shall, to the extent ~~necessary or desirable~~necessary, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured~~ Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (Golub Capital Private Credit Fund)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of a Majority of the Preferred Shares (with the consent of the Collateral Manager), the Issuers shall reduce the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Re-Pricing Eligible Notes (such reduction, a “"Re-Pricing” " and any Class of Re-Pricing Eligible Notes to be subject to a Re-Pricing, a “"Re-Priced Class”"); provided that the Issuers shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any Secured Notes other than the Interest Rate applicable to the related Re-Priced Class may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “"Re-Pricing Intermediary”") upon the recommendation and subject to the approval of (i) a Majority of the Preferred Shares and (ii) the Collateral Manager and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least 30 days prior to the Business Day fixed by a Majority of the Preferred Shares for any proposed Re-Pricing (the “"Re-Pricing Date”"), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly deliver a copy of such notice to each Holder of the proposed Re-Priced Class(es), the Collateral Manager and the Rating Agency), which notice shall: (i) specify the proposed Re-Pricing Date and the revised Interest Rate to be applied with respect to such Class (the “"Re-Pricing Rate”"); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which Secured Notes of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ten (10) Business Days prior to the proposed Re-Pricing Date, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly deliver a copy of such notice to the consenting Holders of the Re-Priced Class), specifying the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by such non-consenting Holders, and shall request that each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the Secured Notes of the Re-Priced Class held by the non-consenting Holders (each such notice, an “"Exercise Notice”") within five (5) Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the Secured Notes such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the Secured Notes of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such Secured Notes, without further notice to the non-consenting Holders thereof, for settlement on the Re-Pricing Date to the Holders delivering Exercise Notices with respect thereto, and any excess Secured Notes of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary and consented to by the Collateral Manager on behalf of the Issuer. All sales of Re-Pricing Eligible Notes to be effected pursuant to this clause (c) shall be made at the applicable Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of each Re-Pricing Eligible Note, by its acceptance of an interest in the Re-Pricing Eligible Note, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all Re-Pricing Eligible Notes of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its Secured Notes in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to effect such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than five (5) Business Days prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the Secured Notes of the Re-Priced Class, including the Secured Notes of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) with the consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers and the Trustee shall have entered into a supplemental indenture, dated as of the Re-Pricing Date solely to decrease the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ applicable to the Re-Priced Class; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has received a written opinion or advice from ~~Cadwalader, Xxxxxxxxxx~~ Axxxx & ~~Xxxx~~ Oxxxx LLP or ~~Xxxxxx~~ Cxxxxx Xxxxxxxx Xxxxx & ~~Xxxxxxxx~~ Hxxxxxxx LLP, or a written opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters, to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income tax with respect to its net income (including any tax liability imposed under Section 1446 of the Code), or result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) all expenses of the Issuer and the Trustee (including the fees of the Re-Pricing Intermediary and fees of counsel) incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds expected to be available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the Preferred Shares, unless such expenses shall have been paid (including from proceeds of any additional issuance of Preferred Shares) or shall be adequately provided for by an entity other than the Issuer; and (vi) none of the Issuer, the Collateral Manager, the Retention Holder or any “"sponsor” " of the Issuer under the U.S. Risk Retention Rules fails to be in compliance with the U.S. Risk Retention Rules or the EU Risk Retention Requirements as a result of such Re-Pricing unless such Person has consented to such Re-Pricing. Unless it otherwise consents, none of the Collateral Manager, the Retention Holder nor any of their Affiliates shall be required to acquire any obligations or securities of the Issuer in connection with such Re-Pricing. (e) If notice has been received by the Trustee from the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, to each Holder of Notes of the Re-Priced Class at the address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall not impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect. Any notice of a Re-Pricing may be withdrawn by a Majority of the Preferred Shares on or prior to the fourth Business Day prior to the scheduled Re-Pricing Date by written notice to the Issuer, the Trustee and the Collateral Manager for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of Secured Notes and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the Issuer (or the Re-Pricing Intermediary on behalf of the Issuer) or Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the Secured Notes of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Supplemental Indenture (Owl Rock Capital Corp)

Optional Re-Pricing. (a) On any Business Day after the Non-Call Period, at the written direction of either (i) the Collateral Manager with the consent of the U.S. Retention Sponsor and the EU/UK Retention Holder or (ii) a Majority of the ~~Preferred Shares (~~Subordinated Notes with the consent of the Collateral Manager), the ~~Issuers~~ U.S. Retention Sponsor and the EU/UK Retention Holder, the Issuer, shall ~~reduce~~ reduce, as applicable, (x) the spread over the Reference Rate ~~(or, in the case of any Fixed Rate Notes, the stated rate of interest)~~ with respect to any Class of Floating Rate Debt and/or (y) the fixed rate of interest with respect to any Class of Fixed Rate Debt, in each case, where such Class of Debt constitutes Re-Pricing Eligible ~~Notes~~ Debt (such ~~reduction~~reduction with respect to any such Class of Debt, a “Re-Pricing” and any Class of ~~Re-Pricing Eligible Notes~~ Debt to be subject to a Re-Pricing, a “Re-Priced Class”); provided that the ~~Issuers~~ Issuer shall not effect any Re-Pricing unless each condition specified in this Section 9.7 is satisfied with respect thereto. For the avoidance of doubt, no terms of any ~~Secured Notes~~ Debt other than the Interest Rate applicable ~~to the related Re-Priced Class~~ thereto may be modified or supplemented in connection with a Re-Pricing. In connection with any Re-Pricing, the Issuer may engage a broker-dealer (the “Re-Pricing Intermediary”) upon the recommendation and subject to the approval of ~~(i)~~ a Majority of the ~~Preferred Shares and (ii) the Collateral Manager~~ Subordinated Notes and such Re-Pricing Intermediary shall assist the Issuer in effecting the Re-Pricing. (b) At least ~~30 days~~ 15 Business Days (or such shorter period of time as the Trustee and the Collateral Manager find reasonably acceptable) prior to the Business Day fixed by the Collateral Manager or a Majority of the ~~Preferred Shares~~ Subordinated Notes, as applicable, for any proposed Re-Pricing (the “Re-Pricing Date”), the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver a notice in writing to the Trustee (who shall promptly ~~deliver~~ forward a copy of such notice to each Holder of the proposed Re-Priced ~~Class(es)~~Class, the Collateral Manager and the Rating Agency), ) which notice shall: (i) specify the proposed Re-Pricing Date and the revised ~~Interest~~ spread over the Reference Rate or range of spreads over the Reference Rate to be applied with respect to such Class (the “Re-Pricing Rate”); (ii) request each Holder of the Re-Priced Class to approve the proposed Re-Pricing; and (iii) specify the price at which ~~Secured Notes~~ Debt of any Holder of the Re-Priced Class which does not approve the Re-Pricing may be sold and transferred pursuant to Section 9.7(c), which, for purposes of such Re-Pricing, shall be the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date. (c) In the event any Holders of the Re-Priced Class do not deliver written consent to the proposed Re-Pricing on or before the date that is ~~ten (10)~~ 5 Business Days ~~prior to~~ after the ~~proposed Re-Pricing Date~~date of such notice, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice thereof to the Trustee (who shall promptly ~~deliver~~ forward a copy of such notice to the consenting Holders of the Re-Priced Class), ) specifying the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by such non-consenting Holders, and shall request ~~that~~ each such consenting Holder provide written notice to the Issuer, the Trustee, the Collateral Manager and the Re-Pricing Intermediary if such Holder would like to purchase all or any portion of the ~~Secured Notes~~ Debt of the Re-Priced Class held by the non-consenting Holders (each such notice, an “Exercise Notice”) within ~~five (5)~~ 5 Business Days after receipt of such notice. In the event the Issuer shall receive Exercise Notices with respect to more than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders thereof (for settlement on the Re-Pricing Date) to the Holders delivering Exercise Notices with respect thereto, pro rata based on the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt such Holders indicated an interest in purchasing pursuant to their Exercise Notices. In the event the Issuer shall receive Exercise Notices with respect to less than the Aggregate Outstanding Amount of the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders, the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall cause the sale and transfer of such ~~Secured Notes~~Debt, without further notice to the non-consenting Holders ~~thereof,~~ thereof (for settlement on the Re-Pricing ~~Date~~ Date) to the Holders delivering Exercise Notices with respect thereto, and any excess ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders shall be sold (for settlement on the Re-Pricing Date) to one or more transferees designated by the Re-Pricing Intermediary ~~and consented to by the Collateral Manager~~ on behalf of the Issuer. All sales of ~~Re-Pricing Eligible Notes~~ Debt to be effected pursuant to this clause (c) shall be made at the ~~applicable~~ Redemption Price after giving effect on a pro forma basis to all payments to be made pursuant to the Priority of Payments on the Re-Pricing Date if such date is a Payment Date, and shall be effected only if the related Re-Pricing is effected in accordance with the provisions hereof. The Holder of ~~each Re-Pricing Eligible Note~~any Debt, by its acceptance of an interest in the ~~Re-Pricing Eligible Note~~Debt, agrees that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, may enter into binding commitments to sell and transfer all ~~Re-Pricing Eligible Notes~~ Debt of a Re-Priced Class held by non-consenting Holders in accordance with this Section 9.7 and, if it is a non-consenting Holder, hereby irrevocably appoints the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, as its true and lawful agent and attorney-in-fact (with full power of substitution) in its name, place and stead and at its expense, in connection with such sale and transfer, and agrees to sell and transfer its ~~Secured Notes~~ Debt in accordance with this Section 9.7 and to cooperate with the Issuer, the Re-Pricing Intermediary and the Trustee to ~~effect~~ effectuate such sale and transfers. The Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, shall deliver written notice to the Trustee and the Collateral Manager not later than ~~five (5)~~ one Business ~~Days~~ Day prior to the proposed Re-Pricing Date confirming that the Issuer has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. For the avoidance of doubt, such Re-Pricing will apply to all the ~~Secured Notes~~ Debt of the Re-Priced Class, including the ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders. (d) The Issuer shall not effect any proposed Re-Pricing unless: (i) ~~with~~ the ~~consent of a Majority of the Preferred Shares and the Collateral Manager, the Issuers~~ Issuer and the Trustee shall have entered into a supplemental ~~indenture,~~ indenture dated as of the Re-Pricing Date ~~solely~~ to decrease (x) the spread over the Reference Rate or (~~or, in~~ y) the ~~case of any Fixed Rate Notes, the stated~~ fixed rate of interest~~) applicable to~~ , as applicable, for the Re-Priced ~~Class~~Class in accordance with Section 8.1; (ii) the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all ~~Secured Notes~~ Debt of the Re-Priced Class held by non-consenting Holders; (iii) the Rating Agency shall have been notified of such Re-Pricing; (iv) the Issuer has ~~received a~~ obtained written ~~opinion or~~ advice ~~from Cadwalader, Xxxxxxxxxx & Xxxx~~ of Dechert LLP or ~~Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or a written~~ an opinion of ~~other~~ nationally-recognized U.S. tax counsel ~~of nationally recognized standing in the United States~~ experienced in such ~~matters,~~ matters to the effect that such Re-Pricing will not result in the Issuer becoming subject to U.S. federal income ~~tax~~ taxation with respect to its net income (including any withholding tax liability ~~imposed~~ under Section 1446 of the Code), ) other than by operation of Chapter 63 of Subtitle F of the Code or ~~result in the Issuer being treated as~~ becoming a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (v) in the case of any Re-Pricing directed by a Majority of the Subordinated Notes, the written consent of the Collateral Manager, the U.S. Retention Sponsor and the EU/UK Retention Holder, and in the case of any Re-Pricing directed by the Collateral Manager, the written consent of the U.S. Retention Sponsor and the EU/UK Retention Holder, shall have been obtained; (vi) all expenses of the Issuer and the ~~Trustee (including~~ Trustee, along with the fees of the Re-Pricing Intermediary and fees of counsel) , incurred in connection with the Re-Pricing shall not exceed the amount of Interest Proceeds ~~expected to be~~ available after taking into account all amounts required to be paid pursuant to the Priority of Payments on the subsequent Payment Date prior to distributions to the Holders of the ~~Preferred Shares~~Subordinated Notes, unless such expenses shall have been paid (including from proceeds of any additional issuance of ~~Preferred Shares~~Subordinated Notes) or shall be adequately provided for by an entity other than the ~~Issuer;~~ Issuer and (vivii) ~~none of~~ (A) neither the ~~Issuer, the Collateral Manager, the Retention Holder or~~ Issuer nor any “sponsor” ~~of the Issuer under~~ (as defined in the U.S. Risk Retention ~~Rules fails~~ Rules) of the Issuer will fail to be in compliance with the U.S. Risk Retention Rules ~~or the EU Risk Retention Requirements~~ as a result of such Re-~~Pricing unless such Person~~ Pricing, (B) there has ~~consented~~ been no change in the U.S. Risk Retention Rules that would require any “sponsor” (as defined in the U.S. Risk Retention Rules) of the Issuer to ~~such~~ hold more than 5% of the credit risk collateralizing the debt issued in connection with the Re-~~Pricing. Unless~~ Pricing and (C) unless it ~~otherwise consents~~consents to do so, none of the Collateral Manager, the EU/UK Retention ~~Holder nor~~ Holder, the U.S. Retention Sponsor, any Affiliate of ~~their Affiliates shall~~ the Collateral Manager or any “sponsor” (as defined in the U.S. Risk Retention Rules) of the Issuer will be required to ~~acquire~~ purchase any ~~obligations or securities of the Issuer~~ debt issued in connection with ~~such~~ the Re-Pricing~~. (e)~~ . If ~~notice has been received by~~ the Trustee receives written notice from the ~~Issuer, or the~~ Issuer that a proposed Re-Pricing Intermediary on behalf of the Issuer, confirming that the Issuer, or the Re-Pricing Intermediary on behalf of the Issuer, has received written commitments to purchase all Secured Notes of the Re-Priced Class held is not effectuated by non-consenting Holders, notice of a Re-Pricing shall be given by the Trustee by email transmission, if available, and by first class mail, postage prepaid, mailed not less than three (3) Business Days prior to the proposed Re-Pricing Date, the Trustee shall post notice to ~~each Holder of Notes~~ the Trustee’s website and notify the Holders of the ~~Re-Priced Class at~~ Debt and the ~~address in the Register (and, in the case of Global Notes, delivered by electronic transmission to DTC) (with a copy to the Collateral Manager), specifying the applicable~~ Rating Agency that such proposed Re-Pricing Date and Re-Pricing Rate. Notice of Re-Pricing shall be given by the Trustee at the expense of the Issuer. Failure to give a notice of Re-Pricing, or any defect therein, to any Holder of any Re-Priced Class shall was not ~~impair or affect the validity of the Re-Pricing or give rise to any claim based upon such failure or defect.~~ effectuated. (e) Any notice of a Re-Pricing may be withdrawn by ~~a Majority of~~ the ~~Preferred Shares~~ Collateral Manager on or prior to the ~~fourth~~ Business Day prior to the scheduled Re-Pricing Date by written notice to the ~~Issuer,~~ Issuer and the Trustee ~~and the Collateral Manager~~ for any reason. Upon receipt of such notice of withdrawal, the Trustee shall send such notice to the Holders of ~~Secured Notes~~ Debt and the Rating Agency. (f) The Issuer shall direct the Trustee to segregate payments and take other reasonable steps to effect the Re-Pricing and the Trustee shall have the authority to take such actions as may be directed by the Issuer or the Collateral Manager as the ~~Issuer (~~Issuer, or the Re-Pricing Intermediary on behalf of the Issuer) , or the Collateral Manager shall deem necessary or desirable to effect a Re-Pricing. In order to give effect to the Re-Pricing, the Issuer may, to the extent necessary or desirable, obtain and assign a separate CUSIP or CUSIPs to the ~~Secured Notes~~ Debt of each Class held by such consenting or non-consenting Holder(s). The Trustee shall be entitled to receive, and shall be fully protected in relying upon an Opinion of Counsel stating that the Re-Pricing is authorized or permitted by this Indenture and that all conditions precedent thereto have been complied with. The Trustee may request and rely on an Issuer Order providing direction and any additional information requested by the Trustee in order to effect a Re-Pricing.

Appears in 1 contract

Samples: Indenture (HPS Corporate Lending Fund)

Common use of Optional Re-Pricing Clause in Contracts