Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral), in whole or in part, together with accrued and unpaid interest thereon and any amount due under Section 2.04(b) and/or Section 2.07(f) (and, in the case of a prepayment of all Advances, all other Obligations that are then due and payable or will become due and payable on account of such prepayment), at any time and from time to time upon notice thereof given to Administrative Agent (which notice shall be irrevocable), who shall give to each Lender prompt notice thereof, by Borrower not later than 12:00 p.m. on the date three (3) New York Business Days prior to the date of any such prepayment; provided, however, that (i) each prepayment shall be made on a Pro Rata Basis, (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof and (iii) each prepayment shall be accompanied by the applicable Make Whole Amount (if any) and any accrued and unpaid interest on the portion of the Total Accrued Loan Amount prepaid. Notwithstanding anything in this Section 2.06(a) to the contrary, the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii) or Section 2.06(d)(i)(C). (b) Following the occurrence of any Mandatory Prepayment Event following the Funding Date, Administrative Agent may, or upon request of any Lender shall, provide written notice to Borrower that it is requiring a prepayment pursuant to this Section 2.06(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s receipt of any Mandatory Prepayment Event Notice in accordance with Section 9.02 (the date or deemed date of such receipt the (“Mandatory Prepayment Event Notice Date”)), all Commitments shall immediately be terminated and Borrower shall: (i) by the Cure Method Notification Deadline, deliver to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement; (ii) by the Cure Time, as applicable, (x) post Cash to the Collateral Accounts on a Pro Rata Basis in an amount equal to the relevant Immediate Amount and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and (iii) by the Relevant Cure Time, pay to Administrative Agent in accordance with Section 2.11 the Total Accrued Loan Amount. (c) If a Collateral Shortfall occurs on any date on or after the Funding Date, Administrative Agent may (or, at the request of any Lender, shall promptly) deliver a notice in the form set forth in Exhibit F hereto to Borrower and all other Lenders of the occurrence of such Collateral Shortfall (such notice, a “Collateral Call Notice”). Upon Borrower’s receipt of any Collateral Call Notice in accordance with Section 9.02, Borrower shall: (i) by the Cure Method Notification Deadline, deliver to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement; (ii) by the Cure Time, post Cash in an amount equal to the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and (iii) by the Relevant Cure Time, in an aggregate amount sufficient to cause the LTV Ratio (determined based on the Reference Price as in effect on the date that the Collateral Shortfall occurred) to be less than or equal to the LTV Maintenance Level:
Appears in 1 contract
Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral), in whole or in part, together with accompanied by (i) accrued and unpaid interest thereon thereon, (ii) the Prepayment Amount (if any) and (iii) any amount due owed under Section 2.04(b) and/or Section 2.07(f) (and, in the case of a prepayment of all Advances, all other Obligations that are then due and payable or will become due and payable on account of such prepayment), at any time and from time to time upon notice thereof given to Administrative Agent (which notice shall be irrevocable)Agent, who shall give to each Lender prompt notice thereof, by Borrower not later than 12:00 p.m. on the date three (3) New York two Business Days prior to the date of any such prepaymentprepayment in the case of a SOFR Advance and on the date one (1) Business Day prior to the date of such prepayment in the case of a Base Rate Advance; provided, however, that (i) each prepayment shall be made on a Pro Rata Basis, (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of $10,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof and (iii) each prepayment shall be accompanied by the applicable Make Whole Amount (if any) and any accrued and unpaid interest on the portion of the Total Accrued Loan Amount prepaidthereof. Notwithstanding anything in this Section 2.06(a) to the contrary, the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii2.06(c)(ii) and 2.06(d)(i). Each prepayment notice delivered by Borrower pursuant to this Section 2.06(a) shall be irrevocable; provided that any such notice may state that prepayment of the Advances is conditioned upon the effectiveness of the receipt of the proceeds from a sale of Collateral or Section 2.06(d)(i)(C)the occurrence of some other identifiable event or condition, in which case such notice may be revoked by Borrower (by notice to the Administrative Agent on or prior to the specified effective date of termination) if such condition is not satisfied.
(b) Following the occurrence of any Mandatory Prepayment Event following Event, the Funding Date, Administrative Calculation Agent may, or upon request of any Lender shallshall (or, if the Calculation Agent fails to do so promptly when requested, any Lender may), provide written notice to Borrower that it is requiring a prepayment pursuant to this Section 2.06(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s Within two (2) Business Days following receipt of any such Mandatory Prepayment Event Notice in accordance with Section 9.02 (the date or deemed date of such receipt the (“Mandatory Prepayment Event Notice Date”))Notice, all Commitments shall immediately be terminated and Borrower shall:
(i) by the Cure Method Notification Deadline, deliver shall pay to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Total Accrued Loan Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, as applicable, (x) post Cash to the Collateral Accounts on a Pro Rata Basis in an amount equal to the relevant Immediate Amount and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, pay to Administrative Agent in accordance with Section 2.11 the Total Accrued Loan Amount2.11.
(c) If a Collateral Shortfall occurs on any date on or after the Funding Closing Date, Administrative Calculation Agent may (may, or, at the request of any Lender, shall promptly) (or, if the Calculation Agent fails to do so promptly when so requested, any Lender may), deliver a notice in the form set forth in Exhibit F hereto to Borrower and all other Lenders of the occurrence of such Collateral Shortfall (such notice, a “Collateral Call Notice”)) not later than 8:00 p.m. on such date or, if Calculation Agent is not reasonably able to deliver such notice by such time due to operational difficulties or otherwise, as soon as reasonably practicable thereafter. Upon BorrowerXxxxxxxx’s receipt of any Collateral Call Notice in accordance with Section 9.02, Borrower shall:
(i) by the Cure Method Notification Deadline, deliver to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, post Cash in an amount equal prior to the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, in an aggregate amount sufficient at least equal to the amount that would cause the LTV Ratio (determined based on the Reference Price as in effect on the date that the Collateral Shortfall first occurred) to be equal to the LTV Maintenance Level:
(i) post Cash, Cash Equivalents and/or Other Acceptable Collateral to the Collateral Accounts, in each case, on a Pro Rata Basis; and/or
(ii) prepay all or any portion of the outstanding principal amount of the Advances on a Pro Rata Basis and pay any related amounts, pursuant to Section 2.06(a). Borrower and each Applicable Lender shall use commercially reasonable efforts to ensure that Custodian provides online informational access (or, if such online access is not available, to timely deliver account statements and advices of transactions) for all Collateral Accounts to Calculation Agent and each other Applicable Lender. Not later than 2:00 p.m. on the Scheduled Trading Day following the first Scheduled Trading Day on which Borrower has received (in accordance with Section 9.02) the relevant Collateral Call Notice by the Collateral Call Notice Deadline, to the extent that the Collateral Shortfall has not otherwise been cured on such date, Borrower shall deliver a notice to Calculation Agent (which notice may be given by email) (x) acknowledging Borrower’s receipt of such Collateral Call Notice, (y) confirming that Borrower will cure the relevant Collateral Shortfall prior to the applicable Cure Time and (z) stating the manner in which Borrower expects to cure such Collateral Shortfall.
(d) Borrower shall only be permitted to request the release of Collateral if (x) Borrower delivers written notice of such release to Calculation Agent (who shall give to each Applicable Lender prompt notice thereof) on or before 5:00 p.m. on the second Business Day prior to the requested date of the release, and (y) Calculation Agent is reasonably satisfied that the additional conditions set forth in one of clauses (i) through (iii) below are met and that the condition set forth in clause (iv) below is met (in which case Calculation Agent shall promptly so notify each Applicable Lender):
(i) Borrower may request the release of any Collateral Shares from the Collateral Accounts as long as:
(A) the Collateral Shares are being released on a Pro Rata Basis for the purpose of settling sales of such Collateral Shares for Cash for fair market value and on an arm’s-length basis, where the scheduled settlement date for each such sale is no later than one then-standard settlement cycle on the Exchange following execution of such sale (any such sale that complies with the conditions set forth in Section 2.06(d)(i), a “Permitted Sale Transaction”) (including, for the avoidance of doubt, for purposes of converting any such Collateral Shares constituting Preferred Shares into Common Shares in connection with a Permitted Sale Transaction);
(B) (x) all of the cash proceeds of each such sale will be paid, on a delivery versus payment basis, to the Collateral Accounts, (y) immediately after giving effect thereto, the LTV Ratio shall be less than or equal to the LTV Maintenance Collateral Release Level and (z) promptly upon receipt of such proceeds in the Collateral Accounts, such proceeds shall be paid to the Administrative Agent and used to prepay Advances pursuant to Section 2.06(a); provided that if, after giving effect to such prepayment, the LTV Ratio would be less than the LTV Collateral Release Level:, then the Borrower shall be entitled to request a release to the Borrower of a portion of such cash proceeds (in lieu of such prepayment with such portion) up to an amount such that, after giving effect to such prepayment and release, the LTV Ratio is equal to the LTV Collateral Release Level; and
(C) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default, Collateral Shortfall or Adjustment Determination Period shall have occurred and be continuing or would result from such release.
(ii) Borrower may request a transfer of Collateral consisting of Cash on a Pro Rata Basis from the Collateral Accounts to Administrative Agent, in accordance with Section 2.11 and, for the avoidance of doubt, without regard to Section 2.06(d)(i)(B), to pay Borrower’s Obligations pursuant to Section 2.03 and/or Section 2.06(a) or (b).
(iii) Borrower may request the release of Collateral Shares constituting Preferred Shares from the Collateral Accounts, on a Pro Rata Basis and, for the avoidance of doubt, without regard to Section 2.06(d)(i), for the purpose of exercising Borrower’s right of conversion thereof, as long as all Common Shares received in connection therewith are delivered directly to the Custodian and credited to the applicable Collateral Accounts as Acceptable Collateral and otherwise delivered pursuant to arrangements reasonably acceptable to the Lenders.
(iv) Notwithstanding anything to the contrary in this Section 2.06(d), at any time when the Collateral includes Common Shares, no Collateral shall be released from any Collateral Account if such release, after giving effect to any Concurrent deposit or crediting of Cash or Cash Equivalents into such Collateral Account and/or prepayment of the Advances owing to the Applicable Lender (including any Agented Lender with respect to such Applicable Lender) to whom such Collateral Account has been pledged, would either (I) cause the aggregate outstanding principal amount of all Advances owing to such Applicable Lender and any Agented Lender with respect to such Applicable Lender, together with accrued and unpaid interest thereon (such outstanding principal amount and accrued and unpaid interest, the “Applicable Credit”), to exceed the Maximum Loan Value of the Applicable Collateral or (II) increase the amount by which the Applicable Credit exceeds the Maximum Loan Value of the Applicable Collateral.
Appears in 1 contract
Samples: Margin Loan Agreement (Birch-or Equity Holdings, LLC)
Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral)Advances, in whole or in part, together with accrued and unpaid interest thereon and in an amount equal to the sum of (i) the principal amount of the Advances being prepaid, (ii) any amount due under Section 2.04(b) and/or Section 2.07(f) applicable Make Whole Amount (and, in the case of except that no Make-Whole Amount will apply to a prepayment made by Borrower pursuant to this Section 2.09(a) within ten (10) Business Days of all AdvancesBorrower’s receipt of notice of an adjustment made pursuant to the last paragraph of Section 8.01), all other Obligations that are then due and payable or will become due and payable on account (iii) accrued interest to the date of such prepayment)prepayment on the amount prepaid, at any time and from time to time upon irrevocable notice thereof given to Administrative Agent (which notice shall be irrevocable)Agent, who shall give to each Lender prompt notice thereof, by Borrower not later than 12:00 p.m. on the date three (3) New York Business Days prior to the date of any such prepayment; provided, however, provided that (i) each prepayment shall be made on a Pro Rata Basis, Basis and (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of at least $10,000,000 or a whole multiple of $1,000,000 in excess thereof and (iii) each prepayment thereof. Such notice shall be accompanied given to Administrative Agent by Borrower not later than 11:00 a.m. on the applicable date five (5) Business Days prior to the date of any such prepayment. For the avoidance of doubt, no Make Whole Amount is payable if the date of prepayment under this clause (if anya) and any accrued and unpaid interest falls on or after the portion of the Total Accrued Loan Amount prepaid. Notwithstanding anything in this Section 2.06(a) to the contrary, the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii) or Section 2.06(d)(i)(C)Make Whole End Date.
(b) Following the occurrence of any Mandatory Prepayment Event following the Funding DateEvent, any Lender may notify Borrower, by providing written notice to Borrower, Administrative Agent mayand all other Lenders, or upon request of any Lender shall, provide written notice to Borrower that it is requiring a prepayment pursuant to this Section 2.06(b2.09(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s receipt of any On the first Business Day immediately following such Mandatory Prepayment Event Notice Notice, Borrower shall give notice to Administrative Agent and each Lender (which notice may be given by email) providing a non-binding statement of the manner in accordance with Section 9.02 (which Borrower intends to satisfy the date or deemed date of payment obligation set forth in the immediately following sentence. On the second Business Day immediately following such receipt the (“Mandatory Prepayment Event Notice Date”))Notice, all Commitments shall immediately be terminated and Borrower shall:
(i) by the Cure Method Notification Deadline, deliver to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, as applicable, (x) post Cash to the Collateral Accounts on a Pro Rata Basis in an amount equal to the relevant Immediate Amount and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, Borrower shall pay to Administrative Agent in accordance with Section 2.11 2.15 the Total Accrued Loan AmountAmount in respect of Lender or Lenders delivering such Mandatory Prepayment Event Notice and (ii) all Commitments shall immediately be terminated.
(c) If a Collateral Shortfall occurs on occurs, any date on or after the Funding Date, Administrative Agent Lender may (or, at the request of any Lender, shall promptly) deliver a notice in the form set forth in Exhibit F hereto to Borrower (with a copy to Administrative Agent and all other Lenders Lenders) of the occurrence of such Collateral Shortfall substantially in the form of Exhibit D hereto (such notice, a “Collateral Call Notice”). Upon Borrower’s receipt of any ; provided that, if the Collateral Call Notice in accordance with Section 9.02is delivered on a day that is not a Business Day, such Collateral Call Notice shall be deemed to have been delivered on the immediately following Business Day. If a Lender gives a Collateral Call Notice to Borrower, Borrower shall:
(i) by the Cure Method Notification Deadline, deliver prior to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, post Cash in an amount equal to take one or more of the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, following actions in an aggregate amount sufficient to cause the LTV Ratio (determined based on the Reference Market Price as in effect on at the date that the time such Collateral Shortfall occurredCall Notice is given) to be less than or equal to the LTV Maintenance Reset Level (the “Collateral Shortfall Cure Amount”) by:
(A) prepaying the outstanding Advances on a Pro Rata Basis pursuant to Section 2.09(a) (without regard to minimum amount and notice requirements specified therein);
(B) depositing Cash or Cash Equivalents into the Collateral Accounts pursuant to Section 2.09(e) (without regard to notice requirements specified therein);
(C) deposit into the Collateral Account and/or provide to Lenders (as applicable) any Other Acceptable Collateral in a form and manner satisfactory to Lenders; and/or
(D) if the date such Collateral Call Notice is given is after the Custodial Arrangement Date, executing Permitted Sale Transactions on a Pro Rata Basis; and
(ii) not later than 2:00 p.m. on the next Business Day (if the LTV Ratio is greater than 65%) or the second Business Day (if the LTV Ratio is equal to or less than 65%) following a Collateral Call Notice being given (the “Notice Deadline”), give notice to Administrative Agent and each Lender (which notice may be given by email) acknowledging Borrower’s receipt of such Collateral Call Notice and providing a non-binding statement of the manner in which Borrower will cure any Collateral Shortfall prior to the Cure Time.
(d) Borrower shall not withdraw any Collateral from any Collateral Account, except that, upon written notice thereof delivered to Administrative Agent (who shall give to each Lender prompt notice thereof) on or before 11:00 a.m. on the fifth Exchange Business Day prior to the requested date of the release:
(i) Borrower shall be permitted to request the release of Cash on a Pro Rata Basis in an aggregate amount not greater than the then-current Available Dividend Amount, as long as (x) the LTV Ratio at the time of such request is, and immediately following such release will be, less than or equal to the LTV Reset Level and (y) any payments that are, or within two Business Days will be, required to be made under Section 5.10 have been made;
(ii) Borrower shall be permitted to request the release of Collateral Shares from the Collateral Accounts on a Pro Rata Basis for the purpose of settling any Permitted Sale Transaction, as long as such release occurs on a delivery-versus-payment basis or pursuant to escrow arrangements reasonably acceptable to the applicable Lender against deposit of the net sale proceeds of such Permitted Sale Transaction into the applicable Collateral Account;
(iii) Borrower shall be permitted to request a transfer of Collateral consisting of Cash on a Pro Rata Basis from the Collateral Accounts to Administrative Agent in accordance with Section 2.15 to make any payment required under Section 5.10; and
(iv) Borrower shall be permitted to request the release on a Pro Rata basis of (x)Cash or Cash Equivalents if the LTV Ratio at the time of such request and for the preceding ten (10) Scheduled Trading Days is less than or equal to the LTV Release Level:, and immediately following such release will be less than or equal to the LTV Release Level and/or (y) Cash deposited in the Collateral Accounts from the proceeds of a Permitted Sale Transaction if the LTV Ratio immediately following such release is less than or equal to the LTV Reset level; provided that, in the case of each of clauses (i) ,(ii) and (iv) above, no Default, Event of Default, Mandatory Prepayment Event, Adjustment Determination Period or Collateral Shortfall shall have occurred and be continuing immediately prior to, or immediately following, such release.
(e) Borrower may post Cash to the Collateral Accounts on at least two Business Days’ notice to Administrative Agent and may post up to an additional 6,400,000 Shares in aggregate to the Collateral Accounts on or prior to the date ten (10) Business Days following the Conversion Date (the “Collateral Share Posting Date”) on at least two Business Days’ notice to Administrative Agent; provided that each type of Acceptable Collateral shall be deposited to the Collateral Accounts on a Pro Rata Basis; provided further that at any time at which the LTV Ratio is greater than the LTV Reset Level, Borrower may post Acceptable Collateral in the form of Cash to the Collateral Accounts other than pursuant to Section 2.09(c) only if such Acceptable Collateral is posted in an aggregate amount sufficient to cause the LTV Ratio (determined based on the Market Price at the time such Acceptable Collateral is posted) to be less than or equal to the LTV Reset Level. Borrower shall use commercially reasonable efforts to (i) cause Issuer to deposit into, or credit to, the relevant Collateral Accounts, or, in the case of any property or assets other than Cash and securities entitlements, deliver to the Custodian (pursuant to the applicable Secured Party’s reasonable delivery instructions), (A) any dividend or distribution paid or distributed on the Collateral Shares, (B) any securities or securities entitlements
Appears in 1 contract
Samples: Margin Loan Agreement (Riverstone VI Centennial QB Holdings, L.P.)
Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral), in whole or in part, together with accrued and unpaid interest thereon thereon, the applicable Make Whole Amount (if any) and any amount due under Section 2.04(b) and/or Section 2.07(f) (and, in the case of a prepayment of all Advances, all other Obligations that are then due and payable or will become due and payable on account of such prepayment), at any time and from time to time upon notice thereof given to Administrative Agent and Calculation Agent (which notice shall be irrevocable), who shall give to each Lender prompt notice thereof, by Borrower not later than 12:00 p.m. on the date three two (32) New York Business Days prior to the date of any such prepayment; provided, however, that (i) each prepayment shall be made on a Pro Rata Basis, Basis and (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of $10,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof and (iii) each prepayment shall be accompanied by the applicable Make Whole Amount (if any) and any accrued and unpaid interest on the portion of the Total Accrued Loan Amount prepaidthereof. Notwithstanding anything in this Section 2.06(a) to the contrary, the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii2.06(c) or Section 2.06(d)(i)(C)and the requirement that the prepayment amount be a whole multiple of $1,000,000 shall be waived with respect to any prepayment made with the proceeds of any Permitted Sale Transaction within one Business Day of the settlement thereof.
(b) Following the occurrence of any Mandatory Prepayment Event following the Funding DateEvent, Administrative Calculation Agent may, or upon request of any Lender shall, provide written notice to Borrower (with a copy to the Lenders) that it is requiring a prepayment pursuant to this Section 2.06(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s receipt of any ; provided that, if Calculation Agent does not deliver a Mandatory Prepayment Event Notice in accordance with Section 9.02 (by 8:00 p.m. on the date or deemed date of such receipt the (“Mandatory Prepayment Event occurs, any Lender may deliver such Mandatory Prepayment Event Notice Date”))to Borrower, all Commitments shall immediately be terminated with a copy to Calculation Agent, Administrative Agent and each other Lender. In such event, Borrower shall:
(i) by , no later than the Relevant Cure Method Notification Deadline, deliver Time with respect to the Administrative Agent (x) the Cure Method Notice such Mandatory Prepayment Event and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, as applicable, (x) post Cash to the Collateral Accounts on a Pro Rata Basis in an aggregate amount equal to the relevant Immediate Amount and/or Total Accrued Loan Amount, (yi) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, pay Cash to Administrative Agent in accordance with Section 2.11 and/or (ii) execute one or more Permitted Sale Transactions (the Total Accrued Loan Amountnet proceeds of which shall be paid to Administrative Agent in accordance with Section 2.11 promptly upon settlement).
(c) If a Collateral Shortfall occurs on any date on or after the Funding Closing Date, Administrative Calculation Agent may (ormay, at the or upon request of any LenderLender shall, shall promptly) deliver a notice in the form set forth in Exhibit F D hereto to Borrower and all other Lenders (with a copy to the Lenders) of the occurrence of such Collateral Shortfall (such notice, a “Collateral Call Notice”); provided that, if Calculation Agent does not deliver a Collateral Call Notice by 8:00 p.m. on the date such Collateral Shortfall occurs, any Lender may deliver such Collateral Call Notice to Borrower, with a copy to Calculation Agent, Administrative Agent and each other Lender. Upon Borrower’s receipt of any Collateral Call Notice in accordance with Section 9.02, Borrower shall:
(i) by the Cure Method Notification Deadline, deliver prior to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, post Cash in an amount equal to the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, in an aggregate amount sufficient to cause the LTV Ratio (determined based on the Reference Price as in effect on the date that the Collateral Shortfall occurred) to be less than or equal to the LTV Maintenance Level:
(i) post Cash, Cash Equivalents or Other Acceptable Collateral to the Collateral Accounts and/or provide Eligible Letters of Credit to the Applicable Lenders, in each case, on a Pro Rata Basis;
(ii) prepay all or any portion of the outstanding principal amount of the Advances on a Pro Rata Basis, and pay any related amounts, pursuant to Section 2.06(a); and/or
(iii) execute one or more Permitted Sale Transactions. Borrower and each Applicable Lender shall use commercially reasonable efforts to ensure that Custodian provides online informational access (or, if such online access is not available, to timely deliver account statements and advices of transactions) for all Collateral Accounts to Calculation Agent and Administrative Agent. Not later than 2:00 p.m. on the Scheduled Trading Day following the first Scheduled Trading Day on which Borrower has received (in accordance with Section 9.02) the relevant Collateral Call Notice by the Collateral Call Notice Deadline, Borrower shall deliver a notice to Calculation Agent and Administrative Agent (which notice may be given by email) (x) acknowledging Borrower’s receipt of such Collateral Call Notice, (y) confirming that Borrower will cure the relevant Collateral Shortfall prior to the Relevant Cure Time and (z) stating the manner in which Borrower will cure such Collateral Shortfall.
(d) Borrower shall only be permitted to request the release of Collateral if (x) Borrower delivers written notice of such release to Calculation Agent (who shall give to each Applicable Lender prompt notice thereof) on or before 12:00 p.m. on the second Business Day prior to the requested date of the release and (y) Calculation Agent is reasonably satisfied that the additional conditions set forth in one of clauses (i) through (iii) below are met and that, if applicable, the condition set forth in clause (iv) below is met (in which case Calculation Agent shall promptly so notify each Applicable Lender):
(i) Borrower may request the release of any Collateral Shares from the Collateral Accounts as long as:
(A) the Collateral Shares are being released on a Pro Rata Basis for the purpose of settling sales of such Collateral Shares for Cash, at a fair market value (taking into account any commercially reasonable block discount and underwriting or similar fees and related transaction expenses) on an arm’s-length basis where the scheduled settlement date for each such sale (excluding registered offerings that settle on a settlement cycle that is customary for registered offerings) is no later than (1) in the case of Collateral Shares that will be settled other than in book-entry form through the facilities of DTC, two then-standard settlement cycles on the Exchange following execution of such sale or (2) in the case of Collateral Shares that will be settled in book-entry form through the facilities of DTC, one then-standard settlement cycle on the Exchange following execution of such sale (unless each Lender consents, in its sole discretion, to a later settlement date) (any such sale satisfying the applicable conditions of clauses (A), (B) and (C) of this Section 2.06(d)(i), a “Permitted Sale Transaction”);
(B) except in the case of any Free Release PST, all of the net cash proceeds of such sale will be paid to the Collateral Accounts, on a Pro Rata Basis and on a delivery versus payment basis against the delivery of the relevant Collateral Shares or pursuant to escrow arrangements reasonably acceptable to each Applicable Lender and, immediately following execution of such transaction, the LTV Ratio is less than the LTV Maintenance Level; and
(C) no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release; provided that Borrower may not request the release of any Collateral Shares bearing an unrestricted CUSIP from the Collateral Accounts if any Collateral Shares bearing a restricted CUSIP would remain in the Collateral Accounts after giving effect to such release. To facilitate a sale of Collateral Shares pursuant to this clause (i), each Applicable Lender shall release its Lien over the Collateral Shares being sold immediately upon its receipt of the proceeds of such Permitted Sale Transaction (in the case of a DVP PST) or upon settlement of such Permitted Sale Transaction (in the case of a Free Release PST), and shall, if required, enter into any escrow or other arrangement reasonably satisfactory to such Applicable Lender with the broker or dealer through whom such Collateral Shares are being sold. Each Applicable Lender shall cooperate with Borrower in effecting any rebalancing pursuant to Section 2.14.
(ii) Borrower may request a release of Collateral from the Collateral Accounts on a Pro Rata Basis, as long as:
(A) the LTV Ratio before, and immediately after, giving effect to such release shall not exceed the LTV Collateral Release Level (or, in the case of (I) a release of Cash in an amount not greater than the then-current Available Dividend Amount or (II) a release of any Cash proceeds of any DVP PST within one Business Day of the settlement thereof, the LTV Maintenance Level);
(B) the Cash or Cash Equivalents remaining in the Collateral Accounts following such release will be sufficient to make any payment that is, or will become, due under Section 2.03(b) on account of a Permitted Sale Transaction or a dividend or distribution on the Collateral Shares that occurred on or before the date of such release; and
(C) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release; provided that Borrower may not request the release of any Collateral Shares bearing an unrestricted CUSIP from the Collateral Accounts if any Collateral Shares bearing a restricted CUSIP would remain in the Collateral Accounts after giving effect to such release.
(iii) Borrower may request a transfer of Collateral consisting of Cash on a Pro Rata Basis from the Collateral Accounts to Administrative Agent in accordance with Section 2.11 to make any payment required under Section 2.03.
(iv) Notwithstanding anything to the contrary in this Section 2.06(d), at any time when the Collateral includes Common Shares, no Collateral shall be released from any Collateral Account if such release, after giving effect to any Concurrent deposit or crediting of Cash or Cash Equivalents into such Collateral Account and/or prepayment of the Advances owing to the Applicable Lender (including any Agented Lender with respect to such Applicable Lender) to whom such Collateral Account has been pledged, would either (I) cause the aggregate outstanding principal amount of all Advances owing to such Applicable Lender and any Agented Lender with respect to such Applicable Lender, together with accrued and unpaid interest thereon (such outstanding principal amount and accrued and unpaid interest, the “Applicable Credit”), to exceed the Maximum Loan Value of the Applicable Collateral or (II) increase the amount by which the Applicable Credit exceeds the Maximum Loan Value of the Applicable Collateral.
(e) Borrower may request the release of any Collateral Shares that are Preferred Shares from the Collateral Accounts as long as such Collateral Shares are being released to Issuer for the purpose of converting such Collateral Shares into Common Shares pursuant to the Series A Certificate of Designation or Series B Certificate of Designation, as applicable, and any Common Shares issued upon conversion of such Collateral Shares are credited to the Collateral Accounts on a Pro Rata Basis.
Appears in 1 contract
Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral), in whole or in part, together with accrued and unpaid interest thereon and any amount due under Section 2.04(b) and/or Section 2.07(f) (and, in the case of a prepayment of all Advances, all other Obligations that are then due and payable or will become due and payable on account of such prepayment), at any time and from time to time upon notice thereof given to Administrative Agent (which notice shall be irrevocable), who shall give to each Lender prompt notice thereof, by Borrower not later than 12:00 5:00 p.m. on the date three (3) New York two Business Days prior to the date of any such prepayment; provided, however, that (i) each prepayment shall be made on a Pro Rata Basis, Basis and (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of $10,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof and (iii) each prepayment shall be accompanied by the applicable Make Whole Amount (if any) and any accrued and unpaid interest on the portion of the Total Accrued Loan Amount prepaidthereof. Notwithstanding anything in this Section 2.06(a) to the contrary, the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii2.06(d)(ii) or Section 2.06(d)(i)(C2.06(e)(i)(B).
(b) Following the occurrence of any Mandatory Prepayment Event following the Funding DateEvent, Administrative Agent may, or upon request of any Lender shall, provide written notice to Borrower that it is requiring a prepayment pursuant to this Section 2.06(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s receipt of any Mandatory Prepayment Event Notice in accordance with Section 9.02 (the date or deemed date of such receipt the (“Mandatory Prepayment Event Notice Date”))9.02, all Commitments shall immediately be terminated and Borrower shall:
(i) by the Cure Method Notification Deadline, deliver prior to the Administrative Agent (x) the Relevant Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, as applicable, (x) post Cash to the Collateral Accounts on a Pro Rata Basis in an amount equal to the relevant Immediate Amount and/or (y) deliver a Capital Call Confirmation Package Time with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Timesuch Mandatory Prepayment Event, pay to Administrative Agent in accordance with Section 2.11 the Total Accrued Loan Amount.
(c) Following the occurrence of any Deleveraging Event, Administrative Agent will provide written notice to Borrower that it is requiring a partial prepayment pursuant to this Section 2.06(c) in connection therewith (a “Deleveraging Event Notice”). Upon Borrower’s receipt of any Deleveraging Event Notice in accordance with Section 9.02, Borrower shall, prior to the Relevant Cure Time with respect to such Deleveraging Event, prepay a portion of the outstanding principal amount of the Advances on a Pro Rata Basis in an amount such that the outstanding principal amount of Advances after giving effect to such prepayment does not exceed (i) in the case of a First Deleveraging Event, an amount equal to the product of (x) the First Deleveraging Event Prepayment Amount and (y) the Remaining Collateral Fraction as of the date of receipt of such Deleveraging Event Notice, (ii) in the case of a Second Deleveraging Event, an amount equal to the product of (x) the Second Deleveraging Event Prepayment Amount and (y) the Remaining Collateral Fraction as of the date of receipt of such Deleveraging Event Notice and (iii) in the case of a Third Deleveraging Event, an amount equal to the product of (x) the Third Deleveraging Event Prepayment Amount and (y) the Remaining Collateral Fraction as of the date of receipt of such Deleveraging Event Notice, and in each case pay any related amounts pursuant to Section 2.06(a).
(d) If a Collateral Shortfall occurs on any date on or after the Funding Closing Date, Administrative Agent may (or, at the request of any Lender, shall promptly) deliver a notice in the form set forth in Exhibit F E hereto to Borrower and all other Lenders of the occurrence of such Collateral Shortfall (such notice, a “Collateral Call Notice”). Upon Borrower’s receipt of any Collateral Call Notice in accordance with Section 9.02, Borrower shall:
(i) by the Cure Method Notification Deadline, deliver prior to the Administrative Agent (x) the Relevant Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, post Cash in an amount equal to the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver a Capital Call Confirmation Package Time with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Timesuch Collateral Shortfall, in an aggregate amount sufficient to cause the LTV Ratio (determined based on the Reference Price as in effect on the date that the Collateral Shortfall occurred) to be less than or equal to the LTV Maintenance Level:
(i) post Cash, Cash Equivalents or Other Acceptable Collateral to the Collateral Accounts, in each case, on a Pro Rata Basis; and/or
(ii) prepay all or any portion of the outstanding principal amount of the Advances on a Pro Rata Basis, and pay any related amounts, pursuant to Section 2.06(a). Borrower and each Applicable Lender shall use commercially reasonable efforts to ensure that Custodian provides online informational access (or, if such online access is not available, to timely deliver account statements and advices of transactions) for all Collateral Accounts to Administrative Agent. Not later than 5:00 p.m. on the Scheduled Trading Day following the first Scheduled Trading Day on which Borrower has received (in accordance with Section 9.02) the relevant Collateral Call Notice by the Collateral Call Notice Deadline, Borrower shall deliver a notice to Administrative Agent (which notice may be given by email) (x) acknowledging Borrower’s receipt of such Collateral Call Notice, (y) confirming that Borrower will cure the relevant Collateral Shortfall prior to the Relevant Cure Time and (z) stating the manner in which Borrower will cure such Collateral Shortfall.
(e) Borrower shall only be permitted to require Administrative Agent to direct Custodian to release Collateral if (x) Borrower delivers written notice of such release to Administrative Agent (who shall give to each Applicable Lender prompt notice thereof) on or before 5:00 p.m. on the third Business Day prior to the requested date of the release, and (y) Administrative Agent is reasonably satisfied that the additional conditions set forth in one of clauses (i) through (iii) below are met (in which case Administrative Agent shall promptly so notify each Applicable Lender):
(i) Borrower may require Administrative Agent to direct Custodian to release Collateral Units from the Collateral Accounts as long as:
(A) (x) the Collateral Units (including any Class A PIK Units) are being released on a Pro Rata Basis for the purpose of converting such Collateral Units (and/or Class A PIK Units, as applicable) into Common Units pursuant to the Issuer Limited Partnership Agreement or (y) the Collateral Units are being released on a Pro Rata Basis for purposes of settling sales of such Collateral Units for Cash (any such sale, a “Permitted Sale Transaction”);
(B) (x) any Common Units issued upon conversion of such Collateral Units (including any Class A PIK Units, as applicable) are immediately credited to the Collateral Accounts on a Pro Rata Basis or (y) with respect to a Permitted Sale Transaction, a portion of the cash proceeds of each such sale will be paid, on a delivery versus payment basis against the delivery of the relevant Collateral Units from the relevant Collateral Accounts or pursuant to escrow arrangements reasonably acceptable to each Applicable Lender, to Administrative Agent in accordance with Section 2.11 to prepay Borrower’s Obligations on a Pro Rata Basis in an amount sufficient to cause the LTV Ratio, immediately following such release, to be less than the applicable LTV Maintenance Level (such amount, the “Required Sale Proceeds Amount”); and
(C) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release. To facilitate a sale of Collateral Units pursuant to this clause (i), each Applicable Lender shall release its Lien over the Collateral Units being sold immediately upon its receipt of the related Required Sale Proceeds Amount (if any), and shall, if required, enter into any agreement or other arrangement reasonably satisfactory to such Applicable Lender with the broker or dealer through whom such Collateral Units are being sold. Each Applicable Lender shall cooperate with Borrower in effecting any rebalancing pursuant to Section 2.14.
(ii) Borrower may require Administrative Agent to direct Custodian to release Cash or Cash Equivalents that constitute Collateral, on a Pro Rata Basis, as long as:
(A) during the ten consecutive Scheduled Trading Days immediately prior to such request, the LTV Ratio on each such Scheduled Trading Day has been less than the LTV Maintenance Level;
(B) the LTV Ratio before, and immediately after, giving effect to such release shall not exceed the LTV Maintenance Level; and
(C) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release; provided that, in the case of a release of Cash in an amount that does not exceed the then-current Available Dividend Amount, only clauses (B) and (C) above must be satisfied and clause (A) will not be applicable.
(iii) Borrower may require Administrative Agent to direct Custodian to transfer Collateral consisting of Cash on a Pro Rata Basis from the Collateral Accounts to Administrative Agent in accordance with Section 2.11 to make any payment required under Section 2.03 or any payments of outstanding principal amounts of the Advances. By requesting any release of Collateral pursuant to this Section 2.06(e), Borrower shall be deemed to represent that the conditions set forth herein for such release have been satisfied.
Appears in 1 contract
Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Any Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral), in whole or in part, together with accompanied by (i) accrued and unpaid interest thereon thereon, (ii) the Prepayment Amount (if any) and (iii) any amount amounts due under Section 2.04(b) and/or Section 2.07(f) (and, in the case of a prepayment of all Advances, all other Obligations that are then due and payable or will become due and payable on account of such prepayment), at any time and from time to time upon notice thereof given to Administrative Agent (which notice shall be irrevocable)Agent, who shall give to each Lender prompt notice thereof, by such Borrower not later than 12:00 p.m. on the date three (3) New York two Business Days prior to the date of any such prepaymentprepayment in the case of a LIBO Rate Advance and on the date one (1) Business Day prior to the date of such prepayment in the case of a Base Rate Advance; provided, however, that (i) each prepayment shall be made on a Pro Rata Basis, (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of $10,000,000 5,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof and (iii) each prepayment shall be accompanied by the applicable Make Whole Amount (if any) and any accrued and unpaid interest on the portion of the Total Accrued Loan Amount prepaidthereof. Notwithstanding anything in this Section 2.06(a) to the contrary, (A) the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii2.06(c)(ii) or 2.06(d)(i)(B) and (B) payment of the Prepayment Amount shall not be required in connection with any prepayment made pursuant to Section 2.06(d)(i)(C2.06(c)(ii). Each prepayment notice delivered by any Borrower pursuant to this Section 2.06(a) shall be irrevocable; provided that any such notice may state that prepayment of the Advances is conditioned upon the effectiveness of the receipt of the proceeds from a sale of Collateral or the occurrence of some other identifiable event or condition, in which case such notice may be revoked by a Borrower (by notice to the Administrative Agent on or prior to the specified effective date of termination) if such condition is not satisfied.
(b) Following the occurrence of any Mandatory Prepayment Event following the Funding DateEvent, Administrative Agent may, or upon request of any Lender shallshall (or, if the Administrative Agent fails to do so promptly when requested, any Lender may), provide written notice to Borrower Borrowers that it is requiring a prepayment pursuant to this Section 2.06(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s Within two Business Days following receipt of any such Mandatory Prepayment Event Notice in accordance with Section 9.02 (the date or deemed date of such receipt the (“Mandatory Prepayment Event Notice Date”))Notice, all Commitments shall immediately be terminated and Borrower shall:
Borrowers shall (i) by the Cure Method Notification Deadline, deliver to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, as applicable, (x) post Cash to the Collateral Accounts on a Pro Rata Basis in an amount equal to the relevant Immediate Amount and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, pay to Administrative Agent in accordance with Section 2.11 and/or (ii) deliver one or more Eligible Trade Tickets evidencing, in combination with any prepayments made in accordance with clause (i), that such Borrower(s) will be entitled to receive net cash proceeds in an amount sufficient to make prepayments in an amount equal to the Total Accrued Loan Amount.
(c) If a Collateral Shortfall occurs on any date on or after the Funding Closing Date, Administrative Agent may (may, or, at the request of any Lender, shall promptly) (or, if the Administrative Agent fails to do so promptly when so requested, any Lender may), deliver a notice in the form set forth in Exhibit F hereto to Borrower Borrowers and all other Lenders of the occurrence of such Collateral Shortfall (such notice, a “Collateral Call Notice”)) not later than 8:00 p.m. on such date or, if Administrative Agent is not reasonably able to deliver such notice by such time due to operational difficulties or otherwise, as soon as reasonably practicable thereafter. Upon Borrower’s Borrowers’ receipt of any Collateral Call Notice in accordance with Section 9.02, Borrower Borrowers shall:
(i) by the Cure Method Notification Deadline, deliver to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, post Cash in an amount equal prior to the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, in an aggregate amount sufficient at least equal to the amount that would cause the LTV Ratio (determined based on the Reference Price as in effect on the date that the Collateral Shortfall first occurred) to be less than or equal to the LTV Maintenance Level:
(i) post Cash, Cash Equivalents and/or Other Acceptable Collateral to the Collateral Accounts and/or provide Eligible Letters of Credit to the Applicable Lenders, in each case, on a Pro Rata Basis;
(ii) prepay all or any portion of the outstanding principal amount of the Advances on a Pro Rata Basis and pay any related amounts, pursuant to Section 2.06(a); and/or
(iii) effect a Permitted Sale Transaction in accordance with Section 2.06(d)(i); provided that if such cure includes effecting a Permitted Sale Transaction, then the relevant Collateral Shortfall shall be deemed to be cured upon delivery by Borrowers prior to the applicable Cure Time of one or more Eligible Trade Tickets evidencing net proceeds, in combination with any other actions set forth in clause (i) or (ii) above, in an aggregate amount sufficient to cure the Collateral Shortfall in full; provided, further, that Borrowers and their Affiliates shall, immediately upon settlement of such Permitted Sale Transaction, cause the cash proceeds received in connection therewith to be deposited into the Collateral Accounts to the extent such cash proceeds are not automatically deposited therein. Borrowers and each Applicable Lender shall use commercially reasonable efforts to ensure that Custodian provides online informational access (or, if such online access is not available, to timely deliver account statements and advices of transactions) for all Collateral Accounts to Administrative Agent and each other Applicable Lender. Not later than 2:00 p.m. on the Scheduled Trading Day following the first Scheduled Trading Day on which Borrowers have received (in accordance with Section 9.02) the relevant Collateral Call Notice by the Collateral Call Notice Deadline, to the extent that the Collateral Shortfall has not otherwise been cured on such date, Borrowers shall deliver a notice to Administrative Agent (which notice may be given by email) (x) acknowledging Borrowers’ receipt of such Collateral Call Notice, (y) confirming that Borrowers will cure the relevant Collateral Shortfall prior to the applicable Cure Time (if it will not otherwise be cured) and (z) stating the manner in which Borrowers expect to cure such Collateral Shortfall (if it will not otherwise be cured).
(d) Borrowers shall only be permitted to request the release of Collateral if (x) Borrowers deliver written notice of such release to Administrative Agent (who shall give to each Applicable Lender prompt notice thereof) on or before 5:00 p.m. on the second Business Day prior to the requested date of the release, and (y) Administrative Agent is reasonably satisfied that the additional conditions set forth in one of clauses (i) through (iv) below are met and that the condition set forth in clause (v) below is met (in which case Administrative Agent shall promptly so notify each Applicable Lender):
(i) Borrowers may request the release of any Collateral Shares from the Collateral Accounts as long as:
(A) the Collateral Shares are being released on a Pro Rata Basis for the purpose of (x) settling sales of such Collateral Shares for Cash, where the scheduled settlement date for each such sale (excluding registered offerings that settle on a settlement cycle that is customary for registered offerings) is no later than one then-standard settlement cycle on the Exchange following execution of such sale (unless each Lender consents, in its sole discretion, to a later settlement date) (it being understood that a “T+3” settlement cycle shall be deemed to be standard for purposes herein) (any such sale that complies with the conditions set forth in Section 2.06(d)(i), a “Permitted Sale Transaction”) (including, for the avoidance of doubt, for purposes of converting any such Collateral Shares constituting Preferred Shares into Common Shares in connection with a Permitted Sale Transaction) or (y) distributing Shares to investors in the Fund Entities, BSOF Fund or BTAS Fund (and their respective investment vehicles, as applicable) in connection with any Permitted Sale Transaction in an amount not to exceed 1% of the aggregate number of Collateral Shares sold in such Permitted Sale Transaction;
(B) a portion of the cash proceeds of each such sale will be paid, on a delivery versus payment basis against the delivery of the relevant Collateral Shares or pursuant to escrow arrangements reasonably acceptable to each Applicable Lender, to Administrative Agent in accordance with Section 2.11 to prepay Borrowers’ Obligations on a Pro Rata Basis in an amount sufficient to cause the LTV Ratio, immediately following such release, to be less than the LTV Maintenance Level (such amount, the “Required Sale Proceeds Amount”); and
(C) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release. To facilitate a sale of Collateral Shares pursuant to this clause (i), each Applicable Lender shall release its Lien over the Collateral Shares being sold immediately upon its receipt of the related Required Sale Proceeds Amount (if any), and shall, if required, enter into any escrow or other arrangement reasonably satisfactory to such Applicable Lender with the broker or dealer through whom such Collateral Shares are being sold. Each Applicable Lender shall cooperate with Borrowers in effecting any rebalancing pursuant to Section 2.14.
(ii) Borrowers may request a release of Cash or Cash Equivalents that constitute Collateral, on a Pro Rata Basis, as long as:
(A) the LTV Ratio before, and immediately after, giving effect to such release does not exceed the LTV Cash Collateral Release Level; and
(B) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release.
(iii) Borrowers may request a transfer of Collateral consisting of Cash on a Pro Rata Basis from the Collateral Accounts to Administrative Agent in accordance with Section 2.11 to repay Borrowers’ Obligations pursuant to Section 2.03 and/or Section 2.06(a).
(iv) Borrowers may request the release of Collateral Shares constituting Preferred Shares from the Collateral Accounts, on a Pro Rata Basis, for the purpose of exercising any such Borrower’s right of conversion thereof, as long as all Common Shares received in connection therewith are delivered directly to the Custodian and credited to the applicable Collateral Accounts as Acceptable Collateral or otherwise delivered subject to arrangements reasonably acceptable to the Lenders.
(v) Notwithstanding anything to the contrary in this Section 2.06(d), at any time when the Collateral includes Common Shares, no Collateral shall be released from any Collateral Account if such release, after giving effect to any Concurrent deposit or crediting of Cash or Cash Equivalents into such Collateral Account and/or prepayment of the Advances owing to the Applicable Lender (including any Agented Lender with respect to such Applicable Lender) to whom such Collateral Account has been pledged, would either (I) cause the aggregate outstanding principal amount of all Advances owing to such Applicable Lender and any Agented Lender with respect to such Applicable Lender, together with accrued and unpaid interest thereon (such outstanding principal amount and accrued and unpaid interest, the “Applicable Credit”), to exceed the Maximum Loan Value of the Applicable Collateral or (II) increase the amount by which the Applicable Credit exceeds the Maximum Loan Value of the Applicable Collateral.
Appears in 1 contract
Samples: Margin Loan Agreement (Blackstone Holdings III L.P.)
Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral)Advances, in whole or in part, together with accrued and unpaid interest thereon and in an amount equal to the sum of (i) the principal amount of the Advances being prepaid, (ii) any amount due under Section 2.04(b) and/or Section 2.07(f) (andapplicable Make Whole Amount, in the case of a prepayment of all Advances, all other Obligations that are then if due and payable or will become due as a result of a Refinancing Transaction, and payable on account (iii) accrued interest to the date of such prepayment)prepayment on the amount prepaid, at any time and from time to time upon irrevocable notice thereof given to Administrative Agent (which notice shall be irrevocable)Agent, who shall give to each Lender prompt notice thereof, by Borrower not later than 12:00 p.m. on the date three (3) New York Business Days prior to the date of any such prepayment; provided, however, provided that (i) each prepayment shall be made on a Pro Rata Basis, Basis and (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of at least $10,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof and (iii) each prepayment thereof. Such notice shall be accompanied given to Administrative Agent by Borrower not later than 11:00 a.m. on the applicable date five (5) Business Days prior to the date of any such prepayment. For the avoidance of doubt, no Make Whole Amount is payable if the date of prepayment under this clause (if anya) and any accrued and unpaid interest falls on or after the portion of the Total Accrued Loan Amount prepaid. Notwithstanding anything in this Section 2.06(a) to the contrary, the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii) or Section 2.06(d)(i)(C)Make Whole End Date.
(b) Following the occurrence of any Mandatory Prepayment Event following the Funding DateEvent, any Lender may notify Borrower, by providing written notice to Borrower, Administrative Agent mayand all other Lenders, or upon request of any Lender shall, provide written notice to Borrower that it is requiring a prepayment pursuant to this Section 2.06(b2.09(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s receipt of any Not later than 2:00 p.m. on the first Business Day following such Mandatory Prepayment Event Notice in accordance with Section 9.02 (the date or deemed date of such receipt the (“Mandatory Prepayment Event Notice Date”))Notice, all Commitments Borrower shall immediately be terminated and Borrower shall:
(i) by the Cure Method Notification Deadline, deliver give notice to the Administrative Agent and each Lender (xwhich notice may be given by email) providing a non-binding statement of the Cure Method Notice and (y) evidence satisfactory manner in which Borrower intends to satisfy the Administrative Agent that payment obligation set forth in the Fund has taken the required steps immediately following sentence. On or prior to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, as applicable, Borrower shall (xA) post Cash to the Collateral Accounts on a Pro Rata Basis in an amount equal to the relevant Immediate Amount and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, pay to Administrative Agent in accordance with Section 2.11 2.15 the Total Accrued Loan Amount.
Amount in respect of Lender or Lenders delivering such Mandatory Prepayment Event Notice, (cB) If a Collateral Shortfall occurs on any date on deliver or after procure the Funding Date, delivery to Administrative Agent may (or, at of an RCF Certificate in an amount not less than the request Total Accrued Loan Amount in respect of any Lender, shall promptly) deliver a notice in the form set forth in Exhibit F hereto Lender or Lenders delivering such Mandatory Prepayment Event Notice and pay to Borrower and all other Lenders of the occurrence of such Collateral Shortfall (such notice, a “Collateral Call Notice”). Upon Borrower’s receipt of any Collateral Call Notice Administrative Agent in accordance with Section 9.022.15 the Total Accrued Loan Amount (including, Borrower shall:
(ifor the avoidance of doubt, any interest on the Advances accrued and unpaid through the Extended Cure Time) by the Cure Method Notification Deadline, deliver in respect of Lender or Lenders delivering such Mandatory Prepayment Event Notice on or prior to the Extended Cure Time or (C) deliver or procure the delivery to Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, post Cash in an amount equal to the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver of a Capital Call Confirmation Package in an amount not less than the Total Accrued Loan Amount in respect of Lender or Lenders delivering such Mandatory Prepayment Event Notice and pay to Administrative Agent in accordance with Section 2.15 the Total Accrued Loan Amount (including, for the avoidance of doubt, any interest on the Advances accrued and unpaid through the Extended Cure Time) in respect of Lender or Lenders delivering such Mandatory Prepayment Event Notice on or prior to the relevant Extended Amount; and
(iii) by Cure Time. On the Relevant Cure Time, in an aggregate amount sufficient to cause the LTV Ratio (determined based on the Reference Price as in effect on the date that the Collateral Shortfall occurred) to all Commitments shall immediately be less than or equal to the LTV Maintenance Level:terminated.
Appears in 1 contract
Samples: Margin Loan Agreement (Starwood Capital Group Global Ii, L.P.)
Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Any Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral), in whole or in part, together with accrued and unpaid interest thereon and any amount due under Section 2.04(b) and/or Section 2.07(f) (and, in the case of a prepayment of all Advances, all other Obligations that are then due and payable or will become due and payable on account of such prepayment), at any time and from time to time upon notice thereof given to Administrative Agent (which notice shall be irrevocable), who shall give to each Lender prompt notice thereof, by such Borrower not later than 12:00 p.m. on the date three two (32) New York Business Days prior to the date of any such prepayment; provided, however, that (i) each prepayment shall be made on a Pro Rata Basis, Basis and (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of $10,000,000 2,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof and (iii) each prepayment shall be accompanied by the applicable Make Whole Amount (if any) and any accrued and unpaid interest on the portion of the Total Accrued Loan Amount prepaidthereof. Notwithstanding anything in this Section 2.06(a) to the contrary, the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii2.06(c) or Section 2.06(d)(i)(C2.06(d)(i)(B).
(b) Following the occurrence of any Mandatory Prepayment Event following the Funding DateEvent, Administrative Agent may, or upon request of any Lender shall, provide written notice to Borrower Borrowers that it is requiring a prepayment pursuant to this Section 2.06(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s receipt of any In such event, one or more Borrowers shall, no later than the Cure Time with respect to such Mandatory Prepayment Event Notice in accordance with Section 9.02 (the date or deemed date of such receipt the (“Mandatory Prepayment Event Notice Date”))Event, all Commitments shall immediately be terminated and Borrower shall:
(i) by the Cure Method Notification Deadline, deliver to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, as applicable, (x) post Cash to the Collateral Accounts on a Pro Rata Basis in an amount equal to the relevant Immediate Amount and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, pay to Administrative Agent in accordance with Section 2.11 and/or (ii) deliver one or more Eligible Trade Tickets evidencing, in combination with any prepayments made in accordance with clause (i), that such Borrower(s) will make and/or be entitled to receive net cash proceeds in an amount sufficient to make, as applicable, prepayments in an amount equal to the Total Accrued Loan Amount.
(c) If a Collateral Shortfall occurs on any date on or after the Funding Closing Date, Administrative Agent may (or, at the request of any Lender, shall promptly) will deliver a notice in the form set forth in Exhibit F D hereto to Borrower Borrowers and all other Lenders of the occurrence of such Collateral Shortfall (such notice, a “Collateral Call Notice”)) not later than the Collateral Call Notice Deadline on such date or, if Administrative Agent is not reasonably able to deliver such notice by such time due to operational difficulties or otherwise, as soon as reasonably practicable thereafter. Upon Borrower’s Borrowers’ receipt of any Collateral Call Notice in accordance with Section 9.02, Borrower Borrowers shall:
(i) by the Cure Method Notification Deadline, deliver prior to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, post Cash in an amount equal to the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, in an aggregate amount sufficient to cause the LTV Ratio (determined based on the Reference Price as in effect on the date that the Collateral Shortfall occurred) to be less than or equal to the LTV Maintenance Level:
(i) post Cash, Cash Equivalents or Other Acceptable Collateral to the Collateral Accounts and/or provide Eligible Letters of Credit to the Applicable Lenders, in each case, on a Pro Rata Basis;
(ii) prepay all or any portion of the outstanding principal amount of the Advances on a Pro Rata Basis, and pay any related amounts, pursuant to Section 2.06(a); and/or
(iii) effect a Permitted Sale Transaction in accordance with Section 2.06(d)(i); provided that if such cure includes effecting a Permitted Sale Transaction, then the relevant Collateral Shortfall shall be deemed to be cured upon delivery by Borrowers prior to the applicable Cure Time of one or more Eligible Trade Tickets evidencing net proceeds, in combination with any other actions set forth in clause (i) or (ii) above, an aggregate amount sufficient to cure the Collateral Shortfall in full; provided, further, that Borrowers and their Affiliates shall, immediately upon settlement of such Permitted Sale Transaction, cause the cash proceeds received in connection therewith to be deposited into the Collateral Account to the extent such cash proceeds are not automatically deposited therein. Borrowers and each Applicable Lender shall use commercially reasonable efforts to ensure that Custodian provides online informational access (or, if such online access is not available, to timely deliver account statements and advices of transactions) for all Collateral Accounts to Administrative Agent. Not later than 2:00 p.m. on the Scheduled Trading Day following the first Scheduled Trading Day on which Borrowers have received (in accordance with Section 9.02) the relevant Collateral Call Notice by the Collateral Call Notice Deadline, Borrowers shall deliver a notice to Administrative Agent (which notice may be given by email) (x) acknowledging Borrowers’ receipt of such Collateral Call Notice, (y) confirming that Borrowers will cure the relevant Collateral Shortfall prior to the Cure Time and (z) stating the manner in which Borrowers expect to cure such Collateral Shortfall.
(d) Borrowers shall only be permitted to request the release of Collateral if (x) Borrowers deliver written notice of such release to Administrative Agent (who shall give to each Applicable Lender prompt notice thereof) on or before 12:00 p.m. on the second Business Day prior to the requested date of the release, and (y) Administrative Agent is reasonably satisfied that the additional conditions set forth in one of clauses (i) through (iii) below are met and that the condition set forth in clause (iv) below is met (in which case Administrative Agent shall promptly so notify each Applicable Lender):
(i) Borrowers may request the release of any Collateral Shares from the Collateral Accounts as long as:
(A) the Collateral Shares are being released on a Pro Rata Basis for the purpose of settling sales of such Collateral Shares for Cash, where the scheduled settlement date for each such sale (excluding registered offerings that settle on a settlement cycle that is customary for registered offerings) is no later than one then-standard settlement cycle on the Exchange following execution of such sale (unless each Lender consents, in its sole discretion, to a later settlement date) (any such sale, a “Permitted Sale Transaction”);
(B) a portion of the cash proceeds of each such sale will be paid, on a delivery versus payment basis against the delivery of the relevant Collateral Shares or pursuant to escrow arrangements reasonably acceptable to each Applicable Lender, to Administrative Agent in accordance with Section 2.11 to prepay Borrowers’ Obligations on a Pro Rata Basis in an amount sufficient to cause the LTV Ratio, immediately following such release, to be less than the LTV Maintenance Level (such amount, the “Required Sale Proceeds Amount”); and
(C) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release. To facilitate a sale of Collateral Shares pursuant to this clause (i), each Applicable Lender shall release its Lien over the Collateral Shares being sold immediately upon its receipt of the related Required Sale Proceeds Amount (if any), and shall, if required, enter into any escrow or other arrangement reasonably satisfactory to such Applicable Lender with the broker or dealer through whom such Collateral Shares are being sold. Each Applicable Lender shall cooperate with Borrowers in effecting any rebalancing pursuant to Section 2.14.
(ii) Borrowers may request a release of Cash or Cash Equivalents that constitute Collateral, on a Pro Rata Basis, as long as:
(A) (i) with respect to a Collateral release of Cash constituting dividends on the Collateral Shares, the amount of Cash to be released does not exceed the Available Dividend Amount as of the date of release and the LTV Ratio before, and immediately after giving effect to such release does not exceed the LTV Maintenance Level and (ii) with respect to any other Collateral release of Cash or Cash Equivalents, the LTV Ratio before, and immediately after giving effect to such release does not exceed the LTV Cash Collateral Release Level; and
(B) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release.
(iii) Borrowers may request a transfer of Collateral consisting of Cash on a Pro Rata Basis from the Collateral Accounts to Administrative Agent in accordance with Section 2.11 to make any payment required under Section 2.03.
(iv) Notwithstanding anything to the contrary in this Section 2.06(d), at any time when the Collateral includes Common Shares, no Collateral shall be released from any Collateral Account if such release, after giving effect to any Concurrent deposit or crediting of Cash or Cash Equivalents into such Collateral Account and/or prepayment of the Advances owing to the Applicable Lender (including any Agented Lender with respect to such Applicable Lender) to whom such Collateral Account has been pledged, would either (I) cause the aggregate outstanding principal amount of all Advances owing to such Applicable Lender and any Agented Lender with respect to such Applicable Lender, together with accrued and unpaid interest thereon (such outstanding principal amount and accrued and unpaid interest, the “Applicable Credit”), to exceed the Maximum Loan Value of the Applicable Collateral or (II) increase the amount by which the Applicable Credit exceeds the Maximum Loan Value of the Applicable Collateral.
Appears in 1 contract
Samples: Margin Loan Agreement (Blackstone Holdings III L.P.)
Prepayments of Advances; Collateral Shortfall; Withdrawal of Collateral. (a) Borrower may prepay the outstanding principal amounts of the Advances (including with Cash held as Collateral), in whole or in part, together with accrued and unpaid interest thereon thereon, and any amount due under Section 2.04(b) and/or Section 2.07(f) (and, in the case of a prepayment of all Advances, all other Obligations that are then due and payable or will become due and payable on account of such prepayment), at any time and from time to time upon notice thereof given to Administrative Agent (which notice shall be irrevocable), who shall give to each Lender prompt notice thereof, by Borrower not later than 12:00 4:00 p.m. on the date three two (32) New York Business Days prior to the date of any such prepayment; provided, however, that (i) each prepayment shall be made on a Pro Rata Basis, Basis and (ii) each partial prepayment of the Advances shall be either (x) the Total Accrued Loan Amount paid in full or (y) in an aggregate principal amount of $10,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof and (iii) each prepayment shall be accompanied by the applicable Make Whole Amount (if any) and any accrued and unpaid interest on the portion of the Total Accrued Loan Amount prepaidthereof. Notwithstanding anything in this Section 2.06(a) to the contrary, the notice requirements and prepayment minimum amount requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(c)(iii2.06(c) or 2.06(d)(i)(B) and the notice requirements shall be waived with respect to any prepayment made pursuant to Section 2.06(d)(i)(C2.06(c). If Administrative Agent receives less than one Business Day’s notice of any prepayment to be made pursuant to Section 2.06(c) it shall use commercially reasonable best efforts to process such prepayment on the Business Day received and, in any event, on the following Business Day.
(b) Following Upon becoming aware of the occurrence of any Mandatory Prepayment Event following the Funding DateEvent, Administrative Agent may, or upon request of any Lender shall, provide written notice to Borrower that it is requiring a prepayment pursuant to this Section 2.06(b) in connection therewith (a “Mandatory Prepayment Event Notice”). Upon Borrower’s receipt of any ; provided that if Administrative Agent does not deliver a Mandatory Prepayment Event Notice in accordance with Section 9.02 (by 8:00 p.m. on the date or deemed date of such receipt the (“Mandatory Prepayment Event occurs, any Lender may deliver such Mandatory Prepayment Event Notice Date”))to Borrower, all Commitments shall immediately be terminated and with a copy to Administrative Agent. In such event, Borrower shall:
(i) by , no later than the Relevant Cure Method Notification Deadline, deliver to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, as applicable, (x) post Cash to the Collateral Accounts on a Pro Rata Basis in an amount equal to the relevant Immediate Amount and/or (y) deliver a Capital Call Confirmation Package Time with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Timesuch Mandatory Prepayment Event, pay to Administrative Agent in accordance with Section 2.11 the Total Accrued Loan Amount.
(c) If a Collateral Shortfall occurs on any date on or after the Funding Series A Closing Date, Administrative Agent may (or, at the request of any Lender, shall promptly) shall), deliver a notice in the form set forth in Exhibit F hereto to Borrower and all other Lenders of the occurrence of such Collateral Shortfall (such notice, a “Collateral Call Notice”); provided that if Administrative Agent does not deliver a Collateral Call Notice by 8:00 p.m. on the date such Collateral Shortfall occurs, any Lender may deliver such Collateral Call Notice to Borrower, with a copy to Administrative Agent. Upon Borrower’s receipt of any Collateral Call Notice in accordance with Section 9.02, Borrower shall:
(i) by the Cure Method Notification Deadline, deliver prior to the Administrative Agent (x) the Cure Method Notice and (y) evidence satisfactory to the Administrative Agent that the Fund has taken the required steps to borrow the Subscription Line Amount in accordance with the Subscription Line Agreement;
(ii) by the Cure Time, post Cash in an amount equal to the relevant Immediate Amount to the Collateral Accounts on a Pro Rata Basis and/or (y) deliver a Capital Call Confirmation Package with respect to the relevant Extended Amount; and
(iii) by the Relevant Cure Time, in an aggregate amount sufficient to cause the LTV Ratio (determined based on the Reference Price as in effect on the date that the Collateral Shortfall occurred) to be less than or equal to the LTV Maintenance Level:
(i) post Cash, Cash Equivalents or Other Acceptable Collateral to the Collateral Accounts and/or provide Eligible Letters of Credit to the Applicable Lenders, in each case, on a Pro Rata Basis; and/or
(ii) prepay all or any portion of the outstanding principal amount of the Advances on a Pro Rata Basis, and pay any related amounts, pursuant to Section 2.06(a). Borrower and each Applicable Lender shall use commercially reasonable efforts to ensure that Custodian provides online informational access (or, if such online access is not available, to timely deliver account statements and advices of transactions) for all Collateral Accounts to Administrative Agent. Not later than 2:00 p.m. on the Scheduled Trading Day following the first Scheduled Trading Day on which Borrower has received (in accordance with Section 9.02) the relevant Collateral Call Notice by the Collateral Call Notice Deadline, Borrower shall deliver a notice to Administrative Agent (which notice may be given by email) (x) acknowledging Borrower’s receipt of such Collateral Call Notice, (y) confirming that Borrower will cure the relevant Collateral Shortfall prior to the Relevant Cure Time and (z) stating the manner in which Borrower will cure such Collateral Shortfall.
(d) Borrower shall only be permitted to request the release of Collateral if (x) Borrower delivers written notice of such release to Calculation Agents (who shall give to each Applicable Lender prompt notice thereof) on or before 5:00 p.m. on the third Business Day prior to the requested date of the release, and (y) Calculation Agents are reasonably satisfied that the additional conditions set forth in one of clauses (i) through (iii) below are met and that the condition set forth in clause (iv) below is met (in which case Calculation Agents shall promptly so notify each Applicable Lender):
(i) Borrower may request the release of any Collateral Shares from the Collateral Accounts as long as:
(A) the Collateral Shares are being released on a Pro Rata Basis for the purpose of settling sales of such Collateral Shares for Cash, where (x) the sale is executed through a Lender or its broker-dealer affiliate or, if no Lender or such broker-dealer affiliate is willing to execute such sale, any other broker-dealer and (y) the scheduled settlement date for each such sale (excluding registered offerings that settle on a settlement cycle that is customary for registered offerings) is no later than (1) in the case of Collateral Shares that will be settled other than in book-entry form at DTC, two then-standard settlement cycles on the Exchange or (2) in the case of Collateral Shares that will be settled in book-entry form at DTC, one then-standard settlement cycle on the Exchange, in each case, following execution of such sale (unless each Lender consents, in its sole discretion, to a later settlement date) (any such sale, a “Permitted Sale Transaction”);
(B) a portion of the cash proceeds of each such sale will be paid, on a delivery versus payment basis against the delivery of the relevant Collateral Shares from the relevant Collateral Accounts or pursuant to escrow arrangements reasonably acceptable to each Applicable Lender, to Administrative Agent in accordance with Section 2.11 to prepay Borrower’s Obligations on a Pro Rata Basis in an amount sufficient to cause the LTV Ratio, immediately following such release, to be less than the LTV Collateral Release Level (such amount, the “Required Sale Proceeds Amount”);
(C) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release; and
(D) (i) the Calculation Agents shall be reasonably satisfied that such Permitted Sale Transaction has been executed for fair market value and on an arms-length basis and (ii) the LTV Ratio is equal to or less than the LTV Collateral Release Level for five (5) consecutive Exchange Business Days ending on the day on which such notice is given. To facilitate a sale of Collateral Shares pursuant to this clause (i), each Applicable Lender shall release its Lien over the Collateral Shares being sold immediately upon its receipt of the related Required Sale Proceeds Amount (if any), and shall, if required, enter into any escrow or other arrangement reasonably satisfactory to such Applicable Lender with the broker or dealer through whom such Collateral Shares are being sold. Each Applicable Lender shall cooperate with Borrower in effecting any rebalancing pursuant to Section 2.14.
(ii) Borrower may request a release of Cash or Cash Equivalents that constitute Collateral, on a Pro Rata Basis, as long as:
(A) the LTV Ratio shall be equal to or less than the LTV Collateral Release Level (x) for five (5) consecutive Exchange Business Days ending on the day on which such notice is given and (y) immediately after giving effect to such release; and
(B) no Mandatory Prepayment Event shall have occurred (unless such Mandatory Prepayment Event has been cured or waived) and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing or would result from such release; provided that if, at any time, Borrower shall have received any amount pursuant to the Series A Closing Date Equity Commitment Letter, Borrower may not request a release of Cash or Cash Equivalents from the Collateral Accounts prior to the Series A Unrestricted Date (as defined in the Issuer Agreements) unless such amount shall remain in the Collateral Accounts after giving effect to such release.
(iii) Borrower may request a transfer of Collateral consisting of Cash on a Pro Rata Basis from the Collateral Accounts to Administrative Agent in accordance with Section 2.11 to make any payment required under Section 2.03.
(iv) Notwithstanding anything to the contrary in this Section 2.06(d), at any time when the Collateral includes Common Shares, no Collateral shall be released from any Collateral Account if such release, after giving effect to any Concurrent prepayment of the Advances owing to the Applicable Lender (including any Agented Lender with respect to such Applicable Lender) to whom such Collateral Account has been pledged, would either (I) cause the aggregate outstanding principal amount of all Advances owing to such Applicable Lender and any Agented Lender with respect to such Applicable Lender, together with accrued and unpaid interest thereon (such outstanding principal amount and accrued and unpaid interest, the “Applicable Credit”), to exceed the Maximum Loan Value of the Applicable Collateral or (II) increase the amount by which the Applicable Credit exceeds the Maximum Loan Value of the Applicable Collateral.
(v) Borrower may request the release of any Collateral Shares from the Collateral Accounts as long as the Collateral Shares are being released to the Issuer for the purpose of converting such Collateral Shares into Common Shares pursuant to the Series A Certificate of Designation and any Common Shares issued upon conversion of such Collateral Shares are credited to the Collateral Accounts on a Pro Rata Basis.
Appears in 1 contract
