LOAN AND SECURITY AGREEMENT dated as of November 29, 2016 among CCT SE I LLC The Lenders Party Hereto The Collateral Administrator, Collateral Agent and Intermediary Party Hereto JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent and...
EXHIBIT 10.1
Corporate Capital Trust, Inc. - 8-K
EXECUTION COPY
dated as of
November 29, 2016
among
CCT SE I LLC
The Lenders Party Hereto
The Collateral Administrator, Collateral Agent and Intermediary Party Hereto
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Administrative Agent
and
CORPORATE CAPITAL TRUST, INC.,
as Portfolio Manager
Table of Contents
Page | ||||
ARTICLE I | ||||
THE PORTFOLIO INVESTMENTS | ||||
SECTION 1.01. | Purchases of Portfolio Investments | 21 | ||
SECTION 1.02. | Procedures for Purchases and Related Advances | 21 | ||
SECTION 1.03. | Conditions to Purchases and Advances | 21 | ||
SECTION 1.04. | Sales of Portfolio Investments | 22 | ||
SECTION 1.05. | Certain Assumptions relating to Portfolio Investments | 24 | ||
SECTION 1.06. | Valuation of Permitted Non-USD Currency Assets | 24 | ||
ARTICLE II | ||||
THE AdvanceS | ||||
SECTION 2.01. | Financing Commitments | 24 | ||
SECTION 2.02. | [Reserved] | 25 | ||
SECTION 2.03. | Advances; Use of Proceeds | 25 | ||
SECTION 2.04. | Other Conditions to Advances | 26 | ||
ARTICLE III | ||||
ADDITIONAL TERMS APPLICABLE TO THE Advances | ||||
SECTION 3.01. | The Advances | 27 | ||
SECTION 3.02. | [Reserved] | 30 | ||
SECTION 3.03. | Taxes | 30 | ||
ARTICLE IV | ||||
COLLECTIONS AND PAYMENTS | ||||
SECTION 4.01. | Interest Proceeds | 34 | ||
SECTION 4.02. | Principal Proceeds | 34 | ||
SECTION 4.03. | Principal and Interest Payments; Prepayments; Commitment Fee | 35 | ||
SECTION 4.04. | Market Value Cure Account | 37 | ||
SECTION 4.05. | Priority of Payments | 37 | ||
SECTION 4.06. | Payments Generally | 38 | ||
SECTION 4.07. | Termination or Reduction of Financing Commitments | 38 | ||
ARTICLE V | ||||
THE PORTFOLIO MANAGER | ||||
SECTION 5.01. | Appointment and Duties of the Portfolio Manager | 39 | ||
SECTION 5.02. | Portfolio Manager Representations as to Eligibility Criteria; Etc. | 40 | ||
SECTION 5.03. | Indemnification | 40 | ||
ARTICLE VI | ||||
REPRESENTATIONS, WARRANTIES AND COVENANTS | ||||
SECTION 6.01. | Representations and Warranties | 40 |
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SECTION 6.02. | Covenants of the Company and the Portfolio Manager | 44 | ||
SECTION 6.03. | Amendments of Portfolio Investments, Etc. | 49 | ||
ARTICLE VII | ||||
EVENTS OF DEFAULT | ||||
ARTICLE VIII | ||||
ACCOUNTS; COLLATERAL SECURITY | ||||
SECTION 8.01. | The Accounts; Agreement as to Control | 52 | ||
SECTION 8.02. | Collateral Security; Pledge; Delivery | 55 | ||
ARTICLE IX | ||||
THE AGENTS | ||||
SECTION 9.01. | Appointment of Administrative Agent and Collateral Agent | 57 | ||
SECTION 9.02. | Additional Provisions Relating to the Collateral Agent and the Collateral Administrator | 60 | ||
ARTICLE X | ||||
MISCELLANEOUS | ||||
SECTION 10.01. | Non-Petition; Limited Recourse | 62 | ||
SECTION 10.02. | Notices | 63 | ||
SECTION 10.03. | No Waiver | 63 | ||
SECTION 10.04. | Expenses; Indemnity; Damage Waiver; Right of Setoff | 63 | ||
SECTION 10.05. | Amendments | 64 | ||
SECTION 10.06. | Successors; Assignments | 65 | ||
SECTION 10.07. | Governing Law; Submission to Jurisdiction; Etc. | 67 | ||
SECTION 10.08. | Interest Rate Limitation | 67 | ||
SECTION 10.09. | PATRIOT Act | 68 | ||
SECTION 10.10. | Counterparts | 68 | ||
SECTION 10.11. | Headings | 68 | ||
SECTION 10.12. | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 68 |
Schedules | |
Schedule 1 | Transaction Schedule |
Schedule 2 | Contents of Notice of Acquisition |
Schedule 3 | Eligibility Criteria |
Schedule 4 | Concentration Limitations |
Schedule 5 | Initial Portfolio Investments |
Schedule 6 | Xxxxxβx Industry Classifications |
Exhibits | |
Exhibit A | Form of Request for Advance |
Exhibit B | Form of Reports |
LOAN AND SECURITY AGREEMENT dated as of November 29, 2016 (this βAgreementβ) among CCT SE I LLC, as borrower (the βCompanyβ); CORPORATE CAPITAL TRUST, INC. (the βPortfolio Managerβ); the Lenders party hereto; STATE STREET BANK AND TRUST COMPANY, in its capacity as collateral agent (in such capacity, the βCollateral Agentβ); STATE STREET BANK AND TRUST COMPANY, in its capacity as collateral administrator (in such capacity, the βCollateral Administratorβ); STATE STREET BANK AND TRUST COMPANY, in its capacity as securities intermediary (in such capacity, the βSecurities Intermediaryβ) and as bank (in such capacity, the βBankβ and, together with the Securities Intermediary in such respective capacities, the βIntermediaryβ); and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders hereunder (in such capacity, the βAdministrative Agentβ).
The Portfolio Manager and the Company wish for the Company to acquire and finance certain corporate loans and other corporate debt securities (the βPortfolio Investmentsβ), all on and subject to the terms and conditions set forth herein.
Furthermore, the Company intends to enter into a Sale and Contribution Agreement (the βSale Agreementβ), dated on or about the date hereof, between the Company and Corporate Capital Trust, Inc. (in such capacity, the βSellerβ), pursuant to which the Company shall from time to time acquire Portfolio Investments from the Seller.
On and subject to the terms and conditions set forth herein, JPMorgan Chase Bank, National Association (βJPMCBβ) and its respective successors and permitted assigns (together with JPMCB, the βLendersβ) have agreed to make advances to the Company (βAdvancesβ) hereunder to the extent specified on the transaction schedule attached as Schedule 1 hereto (the βTransaction Scheduleβ).
Accordingly, the parties hereto agree as follows:
Certain Defined Terms
βAccordion Dateβ means any Business Day on which the Administrative Agent (in its sole discretion) approves in writing (which may be by email) an Accordion Option Request.
βAccordion Optionβ means, on any date prior to the termination of the Reinvestment Period on which the aggregate outstanding principal amount of the Advances is at least equal to U.S.$300,000,000, the option of the Company to request in writing (which may be by email) (each an βAccordion Option Requestβ) from the Administrative Agent and the Lenders an increase of the Financing Commitments to up to U.S.$400,000,000; provided that the amount of each Accordion Option Request shall be not less than U.S.$25,000,000.
βAccountsβ has the meaning set forth in Section 8.01(a).
βAdditional Payment Dateβ has the meaning set forth in Section 4.05.
βAdjusted Applicable Marginβ means the stated Applicable Margin for Advances set forth on the Transaction Schedule plus 2% per annum.
βAdministrative Agentβ has the meaning set forth in the introductory section of this Agreement.
βAdvancesβ has the meaning set forth in the introductory section of this Agreement.
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βAdverse Proceedingβ means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of the Company) at law or in equity, or before or by any Governmental Authority, whether pending, active or, to the Companyβs or the Portfolio Managerβs knowledge, threatened against or affecting the Company or the Portfolio Manager or their respective property that would reasonably be expected to result in a Material Adverse Effect.
βAffiliateβ means, with respect to any Person, any Person directly or indirectly controlling, controlled by, or under common control with, such former Person but, which shall not, with respect to the Company, include the obligors under any Portfolio Investment. For the purposes of this definition, control of a Person shall mean the power, direct or indirect, (i) to vote more than 50% of the securities having ordinary voting power for the election of directors of any such Person or (ii) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
βAgentβ has the meaning set forth in Section 9.01.
βAgent Business Dayβ means any day on which commercial banks settle payments in each of New York City and the city in which the corporate trust office of the Collateral Agent is located (which shall initially be Boston, MA).
βAgreementβ has the meaning set forth in the introductory paragraph hereto.
βAmendmentβ has the meaning set forth in Section 6.03.
βAnti-Corruption Lawsβ means all laws, rules, and regulations of any jurisdiction applicable to the Company from time to time concerning or relating to bribery or corruption.
βApplicable Lawβ means, for any Person, all existing and future laws, rules, regulations (including temporary and final income tax regulations), statutes, treaties, codes, ordinances, permits, certificates, orders, licenses of and interpretations by any Governmental Authority applicable to such Person and applicable judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other administrative, judicial, or quasi-judicial tribunal or agency of competent jurisdiction.
βAUDβ means Australian dollars.
βBase Rateβ means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 0.50%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively. In the event that the Base Rate is below zero at any time during the term of this Agreement, it shall be deemed to be zero until it exceeds zero again.
βBorrowerβ means Corporate Capital Trust, Inc., in its capacity as borrower under the Parent Credit Agreement.
βBorrowing Base Testβ means a test that will be satisfied on any date of determination if the following is true:
Net Advance | β€ AR |
Net Asset Value |
Where:
AR = 60%.
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βBusiness Dayβ means any day on which commercial banks are open in each of New York City and the city in which the corporate trust office of the Collateral Agent is located; provided that, (i) with respect to any LIBOR related provisions herein or the payment, calculation or conversion of amounts denominated in GBP, βBusiness Dayβ shall be deemed to exclude any day on which banks are required or authorized to be closed in London, England, (ii) with respect to any provisions herein relating to the calculation or conversion of amounts denominated in Euros, βBusiness Dayβ shall be deemed to exclude any day on which banks are required or authorized to be closed in London, England or which is not a TARGET2 Settlement Day, (iii) with respect to the calculation or conversion of amounts denominated in AUD, βBusiness Dayβ shall be deemed to exclude any day on which banks are required or authorized to be closed in Sydney, Australia and (iv) with respect to any provisions herein relating to the calculation or conversion of amounts denominated in CAD, , βBusiness Dayβ shall be deemed to exclude any day on which banks are required or authorized to be closed in Toronto, Canada.
βCADβ means Canadian dollars.
βCalculation Periodβ means the quarterly period from and including the date on which the first Advance is made hereunder to but excluding the first Calculation Period Start Date following the date of such Advance and each successive quarterly period from and including a Calculation Period Start Date to but excluding the immediately succeeding Calculation Period Start Date (or, in the case of the last Calculation Period, if the last Calculation Period does not end on the 15th calendar day of November, February, May or August, the period from and including the related Calculation Period Start Date to but excluding the Maturity Date).
βCalculation Period Start Dateβ means the 30th calendar day of November, February, May and August of each year (or, if any such date is not a Business Day, the immediately succeeding Business Day), commencing in November 2016.
βCash Equivalentsβ means, any of the following: (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (ii) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least βA-1β from S&P or at least βP-1β from Xxxxxβx; (iii) commercial paper maturing no more than three months from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least βA-1β from S&P or at least βP-1β from Xxxxxβx; (iv) certificates of deposit or bankersβ acceptances maturing within three months after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (a) is at least βadequately capitalizedβ (as defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000; and (v) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $5,000,000,000, and (c) has the highest rating obtainable from either S&P or Xxxxxβx.
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βChange in Lawβ means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that all requests, rules, guidelines or directives concerning liquidity and capital adequacy issued by any United States regulatory authority (i) under or in connection with the implementation of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and (ii) in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) shall be deemed to have occurred after the date of this Agreement for purposes of this definition, regardless of the date adopted, issued, promulgated or implemented.
βChange of Controlβ means an event or series of events by which (A) the Parent or its Affiliates, collectively, (i) shall cease to possess, directly or indirectly, the right to elect or appoint (through contract, ownership of voting securities, or otherwise) managers that at all times have a majority of the votes of the board of managers (or similar governing body) of the Company or to direct the management policies and decisions of the Company or (ii) shall cease, directly or indirectly, to own and control legally and beneficially all of the equity interests of the Company or (B) CNL Fund Advisors Company or its Affiliates shall cease to be the investment advisor of the Parent.
βChargesβ has the meaning set forth in Section 10.08.
βCodeβ means the Internal Revenue Code of 1986, as amended.
βCollateralβ has the meaning set forth in Section 8.02(a).
βCollateral Administratorβ has the meaning set forth in the introductory section of this Agreement.
βCollateral Agentβ has the meaning set forth in the introductory section of this Agreement.
βCollateral Principal Amountβ means on any date of determination (A) the aggregate principal balance of the Portfolio, including the funded and unfunded balance on any Delayed Funding Term Loan or Revolving Loan, as of such date plus (B) the amounts on deposit in the Accounts (including cash and Eligible Investments) representing Principal Proceeds as of such date minus (C) the aggregate principal balance of all Ineligible Investments as of such date.
βCollection Accountβ has the meaning set forth in Section 8.01(a).
βCompanyβ has the meaning set forth in the introductory section of this Agreement.
βConcentration Limitation Excessβ means, on any date of determination, without duplication, all or the portion of the principal amount of any Portfolio Investment that exceeds any Concentration Limitation as of such date; provided that the Portfolio Manager shall select in its sole discretion which Portfolio Investment(s) constitute part of the Concentration Limitation Excess; provided further that, with respect to any excess that includes all or a portion of a Delayed Funding Term Loan or a Revolving Loan, the Portfolio Manager shall select any term Portfolio investment from the same obligor and/or any funded portion of the aggregate commitment amount of such Delayed Funding Term Loan or Revolving Loan before selecting any unfunded portion of such aggregate commitment amount; provided further that if the Portfolio Manager does not so select any Portfolio Investment(s), the applicable portion of the Portfolio Investment(s) with the lowest Market Value (as determined by the Administrative Agent in a commercially reasonable manner) shall make up the Concentration Limitation Excess.
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βConcentration Limitationsβ has the meaning set forth in Schedule 4.
βConnection Income Taxesβ means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
βCredit Risk Partyβ has the meaning set forth in Article VII.
βCustodial Accountβ has the meaning set forth in Section 8.01(a)
βDefaultβ has the meaning set forth in Section 1.03.
βDeliverβ (and its correlative forms) means the taking of the following steps by the Company or the Portfolio Manager:
(1) in the case of Portfolio Investments and Eligible Investments, by (x) causing the Securities Intermediary to indicate by book entry that a financial asset comprised thereof has been credited to the applicable Account and (y) causing the Securities Intermediary to agree that it will comply with entitlement orders originated by the Collateral Agent with respect to each such security entitlement without further consent by the Company;
(2) in the case of each general intangible, by notifying the obligor thereunder of the security interest of the Collateral Agent;
(3) in the case of Portfolio Investments consisting of instruments (the βNew York Collateralβ) that do not constitute a financial asset forming the basis of a security entitlement delivered to the Collateral Agent pursuant to clause (1) above, by causing (x) the Collateral Agent to obtain possession of such New York Collateral in the State of New York, or (y) a Person other than the Company and a securities intermediary (A)(I) to obtain possession of such New York Collateral in the State of New York, and (II) to then authenticate a record acknowledging that it holds possession of such New York Collateral for the benefit of the Collateral Agent or (B)(I) to authenticate a record acknowledging that it will take possession of such New York Collateral for the benefit of the Collateral Agent and (II) to then acquire possession of such New York Collateral in the State of New York;
(4) in the case of any account (and all amounts held therein, including the MV Cure Account and amounts on deposit therein) which constitutes a βdeposit accountβ under Article 9 of the UCC, by causing the Intermediary to continuously identify in its books and records the security interest of the Collateral Agent in such account and, except as may be expressly provided herein to the contrary, establishing dominion and control over such account in favor of the Collateral Agent; and
(5) in all cases, by filing or causing the filing of a financing statement with respect to such Collateral with the Delaware Secretary of State.
Notwithstanding clauses (1) and (3) above, the Company or the Portfolio Manager on its behalf shall ensure that all Portfolio Investments denominated in a Permitted Non-USD Currency and all proceeds thereof shall be deposited in or credited to a Permitted Non-USD Currency Account.
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βDelayed Funding Term Loanβ means any Loan that (a) requires the holder thereof to make one or more future advances to the obligor under the underlying instruments relating thereto, (b) specifies a maximum amount that can be borrowed on one or more fixed borrowing dates, and (c) does not permit the re-borrowing of any amount previously repaid by the obligor thereunder; but any such Loan will be a Delayed Funding Term Loan only until all commitments by the holders thereof to make advances to the obligor thereon expire or are terminated or reduced to zero.
βDesignated Email Notification Addressβ means Xxxxxxxx.Xxxxxx@xxx.xxx, provided that, so long as no Event of Default shall have occurred and be continuing and no Market Value Event shall have occurred, the Company may, upon at least five (5) Business Dayβs written notice to the Administrative Agent, the Collateral Administrator and the Collateral Agent, designate any other email address as the Designated Email Notification Address.
βDesignated Independent Broker-Dealerβ means X.X. Xxxxxx Securities LLC; provided that, so long as no Market Value Event shall have occurred and no Event of Default shall have occurred and be continuing, the Portfolio Manager may, upon at least five (5) Business Dayβs written notice to the Administrative Agent, the Collateral Administrator and the Collateral Agent, designate another Independent Broker-Dealer as the Designated Independent Broker-Dealer.
βEBITDAβ means, with respect to the last four full fiscal quarters with respect to any Portfolio Investment, the meaning of βEBITDAβ, βAdjusted EBITDAβ or any comparable definition in the underlying instruments for each such Portfolio Investment, and in any case that βEBITDAβ, βAdjusted EBITDAβ or such comparable definition is not defined in such underlying instruments, an amount, for the obligor on such Portfolio Investment and any parent that is obligated pursuant to the underlying instruments for such Portfolio Investment (determined on a consolidated basis without duplication in accordance with GAAP) equal to earnings from continuing operations for such period plus (a) interest expense, (b) income taxes, (c) depreciation and amortization for such four fiscal quarter period (to the extent deducted in determining earnings from continuing operations for such period), (d) amortization of intangibles (including, but not limited to, goodwill, financing fees and other capitalized costs), other non-cash charges and organization costs, (e) extraordinary losses in accordance with GAAP, (f) one-time, non-recurring or non-cash charges consistent with the applicable compliance statements and financial reporting packages provided by such obligor, and (g) any other item the Portfolio Manager and the Administrative Agent mutually deem to be appropriate; provided that with respect to any obligor for which four full fiscal quarters of economic data are not available, EBITDA shall be determined for such obligor based on annualizing the economic data from the reporting periods actually available.
βEffective Dateβ has the meaning set forth in Section 2.04.
βEligibility Criteriaβ has the meaning set forth in Section 1.03.
βEligible Investmentsβ has the meaning set forth in Section 4.01.
βERISAβ means the United States Employee Retirement Income Security Act of 1974, as amended.
βERISA Affiliateβ means any trade or business (whether or not incorporated) under common control with the Company or the Parent, as applicable, within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412, 430 or 431 of the Code).
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βERISA Eventβ means that (1) the Company has underlying assets which constitute βplan assetsβ within the meaning of the Plan Asset Rules or (2) any of the Company, the Parent or any ERISA Affiliate sponsors, maintains, contributes to, is required to contribute to or has any material liability with respect to any Plan.
βEvent of Defaultβ has the meaning set forth in Article VII.
βExcess Interest Proceedsβ means, at any time of determination, the excess of (1) amounts then on deposit in the Accounts representing Interest Proceeds over (2) the sum of the projected amount required to be paid pursuant to Section 4.05(a) and (b) on the next Interest Payment Date, the next Additional Payment Date or the Maturity Date, as applicable, as determined by the Company in good faith and in a commercially reasonable manner and verified by the Administrative Agent.
βExcluded Taxesβ means any of the following Taxes imposed on or with respect to a Secured Party or required to be withheld or deducted from a payment to a Secured Party, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Secured Party being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Financing Commitment or Advance pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Financing Commitment or Advance or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.03, amounts with respect to such Taxes were payable either to such Lenderβs assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Secured Partyβs failure to comply with Section 3.03(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
βExpense Cap Amountβ has the meaning set forth in Section 4.05(a).
βFATCAβ means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and intergovernmental agreements thereunder, similar or related non-U.S. law that correspond to Sections 1471 to 1474 of the Code, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such sections of the Code and any U.S. or non-U.S. fiscal or regulatory law, legislation, rules, guidance, notes or practices adopted pursuant to such intergovernmental agreement.
βFederal Funds Effective Rateβ means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
βFinancing Commitmentβ means, with respect to each Lender, the commitment of such Lender to provide Advances to the Company hereunder in an amount up to but not exceeding the amount set forth opposite such Lenderβs name on the Transaction Schedule that is held by such Lender at such time.
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β Financial Officerβ means the president, any senior vice president, chief financial officer, principal accounting officer, chief accounting officer, treasurer, assistant treasurer, controller or assistant controller of the Company.
βForeign Lenderβ means a Lender that is not a U.S. Person.
βGAAPβ means generally accepted accounting principles in the effect from time to time in the United States, as applied from time to time by the Company.
βGBPβ means British Pounds.
βGovernmental Authorityβ means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
βIndebtednessβ as applied to any Person, means, without duplication, as determined in accordance with GAAP, (i) all indebtedness of such Person for borrowed money; (ii) all obligations of such Person evidenced by bonds, debentures, notes, deferrable securities or other similar instruments; (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business; (iv) that portion of obligations with respect to capital leases that is properly classified as a liability of such Person on a balance sheet; (v) all non-contingent obligations of such Person to reimburse or prepay any bank or other Person in respect of amounts paid under a letter of credit, bankerβs acceptance or similar instrument; (vi) all debt of others secured by a Lien on any asset of such Person, whether or not such debt is assumed by such Person; and (vii) all debt, lease obligations or similar obligations to repay money of others guaranteed by such Person or for which such Person acts as surety and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person or otherwise to assure a creditor against loss. Notwithstanding the foregoing, βIndebtednessβ shall not include a commitment arising in the ordinary course of business to purchase a future Portfolio Investment in accordance with the terms of this Agreement.
βIndemnified Personβ has the meaning specified in Section 5.03(b).
βIndemnified Taxesβ means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Company under this Agreement and (b) to the extent not otherwise described in (a), Other Taxes.
βIndemniteeβ has the meaning set forth in Section 10.04(b).
βIndependent Broker-Dealerβ means any of the following (as such list may be revised from time to time by mutual agreement of the Company and the Administrative Agent): Bank of America/Xxxxxxx Xxxxx, Barclays Bank, BNP Paribas, Citibank, Credit Suisse, Deutsche Bank, Xxxxxxx Sachs, HSBC, JPMorgan, Lloyds, Xxxxxx Stanley, Nomura, The Royal Bank of Scotland, UBS, Xxxxx Fargo and any Affiliate of any of the foregoing, but in no event including the Company or any Affiliate of the Company.
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βIneligible Investmentβ means any Portfolio Investment that fails, at any time, to satisfy the Eligibility Criteria; provided that with respect to any Portfolio Investment for which the Administrative Agent has waived one or more of the criteria set forth on Schedule 3, the Eligibility Criteria in respect of such Portfolio Investment shall be deemed not to include such waived criteria at any time after such waiver and such Portfolio Investment shall not be considered an βIneligible Investmentβ by reason of its failure to meet such waived criteria; provided further that any Portfolio Investment (other than an Initial Portfolio Investment) which has not been approved by the Administrative Agent pursuant to Section 1.02 on or prior to its Trade Date will be deemed to be an Ineligible Investment until such later date (if any) on which such Portfolio Investment is so approved.
βInitial Portfolio Investmentsβ means the Portfolio Investments listed in Schedule 5.
βInterest Payment Dateβ has the meaning set forth in Section 4.03(b).
βInterest Proceedsβ means all payments of interest received in respect of the Portfolio Investments and Eligible Investments acquired with the proceeds of Portfolio Investments (in each case other than accrued interest purchased using Principal Proceeds, but including proceeds received from the sale of interest accrued after the date on which the Company acquired the related Portfolio Investment), all other payments on the Eligible Investments acquired with the proceeds of Portfolio Investments (for the avoidance of doubt, such other payments shall not include principal payments (including, without limitation, prepayments, repayments or sale proceeds) with respect to Eligible Investments acquired with Principal Proceeds) and all payments of fees, dividends and other similar amounts received in respect of the Portfolio Investments or deposited into any of the Accounts (including closing fees, commitment fees, facility fees, late payment fees, amendment fees, waiver fees, prepayment fees and premiums, ticking fees, delayed compensation, customary syndication or other up-front fees and customary administrative agency or similar fees); provided, however, that for the avoidance of doubt, Interest Proceeds shall not include amounts or Eligible Investments in the MV Cure Account or Unfunded Exposure Account or any proceeds therefrom.
βInvestmentβ means (a) the purchase of any debt or equity security of any other Person, (b) the making of any Loan or advance to any other Person, or (c) becoming obligated with respect to a contingent obligation in respect of obligations of any other Person.
βIRSβ means the United States Internal Revenue Service.
βJPMCBβ has the meaning set forth in the introductory section of this Agreement.
βLendersβ has the meaning set forth in the introductory section of this Agreement.
βLender Participantβ has the meaning set forth in Section 10.06(c).
βLiabilitiesβ has the meaning set forth in Section 5.03.
βLIBO Rateβ means, for each Calculation Period relating to an Advance, the rate appearing on the Reuters Screen at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Calculation Period, as the rate for U.S. dollar deposits with a maturity of three months. If such rate is not available at such time for any reason, then the LIBO Rate for such Calculation Period shall be equal to the rate that results from interpolating on a linear basis between (a) the rate appearing on the Reuters Screen for the longest period available that is shorter than three months and (b) the rate appearing on the Reuters Screen that is the shortest period available that is longer than three months. The LIBO Rate shall be determined by the Administrative Agent (and notified in writing to the Collateral Administrator and the Portfolio Manager), and such determination shall be conclusive absent manifest error. Notwithstanding anything in the foregoing to the contrary, if the LIBO Rate as calculated for any purpose under this Agreement is below zero, the LIBO Rate will be deemed to be zero for such purpose until such time as it exceeds zero again.
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βLienβ means any security interest, lien, charge, pledge, preference, equity or encumbrance of any kind, including tax liens, mechanicsβ liens and any liens that attach by operation of law.
βLoanβ means any obligation for the payment or repayment of borrowed money that is documented by a term and/or revolving loan agreement or other similar credit agreement.
βLoan Documentsβ means this Agreement and the Sale Agreement.
βMargin Stockβ has the meaning provided such term in Regulation U of the Board of Governors of the Federal Reserve Board.
βMarket Valueβ means, on any date of determination, (i) with respect to any Senior Secured Loan, Second Lien Loan or U.S. dollar denominated corporate debt security, the average indicative bid-side price determined by Markit Group Limited, LoanX, Inc. or TRACE (or, if the Administrative Agent determines in good faith that such bid price is not available or is not indicative of the actual current market value, the market value of such Senior Secured Loan, Second Lien Loan or corporate debt security as determined by the Administrative Agent in good faith and in a commercially reasonable manner) and (ii) with respect to any other Portfolio Investment, the market value of such Portfolio Investment as determined by the Administrative Agent in good faith and in a commercially reasonable manner, in each case, expressed as a percentage of par.
So long as no Market Value Event has occurred or Event of Default has occurred and is continuing, the Portfolio Manager shall have the right to initiate a dispute of the Market Value of certain Portfolio Investments as set forth below; provided that the Portfolio Manager provides the bid or valuation set forth below no later than 2:00 p.m. New York City time on the Business Day immediately following the related date of determination.
If the Portfolio Manager disputes the determination of Market Value with respect to any Portfolio Investment whose Market Value is not determined by the Administrative Agent using Markit Group Limited, LoanX, Inc. or TRACE, the Portfolio Manager may, with respect to up to three such Portfolio Investments in each calendar quarter, engage a Nationally Recognized Valuation Provider, at the expense of the Company, to provide a valuation of the applicable Portfolio Investments and submit evidence of such valuation to the Administrative Agent; provided that if the Administrative Agent disputes the determination of Market Value made by such Nationally Recognized Valuation Provider, the Administrative Agent many engage a valuation provider who provides asset valuation services for assets similar to the Portfolio Investments, at the expense of the Administrative Agent, to provide a valuation of the applicable Portfolio Investments and submit evidence of such valuation to the Company and the Portfolio Manager; provided further that the Market Value of such Portfolio Investment shall be the average of the Market Value provided by Nationally Recognized Valuation Provider selected by the Portfolio Manager and the Market Value provided by the valuation provider selected by the Administrative Agent. With respect to any Portfolio Investment whose Market Value is determined by the Administrative Agent using Markit Group Limited, LoanX, Inc. or TRACE, the Portfolio Manager may, at the expense of the Company, obtain a written executable bid from an Independent Broker-Dealer for the full principal amount of such Portfolio Investment and submit evidence of such bid to the Administrative Agent.
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The market value of any Portfolio Investment determined in accordance with the immediately preceding paragraph will be the Market Value for the applicable Portfolio Investment from and after (but not earlier than) the Business Day following receipt of notice of such valuation by the Administrative Agent until the Administrative Agent has made a good faith and commercially reasonable determination that the Market Value of such Portfolio Investment has changed, in which case the Administrative Agent may determine another Market Value (in accordance with the definition of Market Value); provided that, on any future date of determination, the Market Value of any Portfolio Investment determined in accordance with this paragraph may be disputed by the Portfolio Manager in accordance with and subject to the dispute provision above.
Notwithstanding anything to the contrary herein, (A) the Market Value for any Portfolio Investment shall not be greater than the par amount thereof, (B) the Market Value of any Ineligible Investment shall be deemed to be zero and (C) the Administrative Agent shall be entitled to disregard as invalid any bid submitted by the Portfolio Manager from any Independent Broker-Dealer if, in the Administrative Agentβs good faith judgment: (i) such Independent Broker-Dealer is ineligible to accept assignment or transfer of the relevant Portfolio Investment or portion thereof, as applicable, substantially in accordance with the then-current market practice in the principal market for such Portfolio Investment, as reasonably determined by the Administrative Agent; or (ii) such firm bid or such firm offer is not bona fide due to the insolvency of the Independent Broker-Dealer.
The Administrative Agent shall notify the Company, the Portfolio Manager and the Collateral Administrator in writing of the then-current Market Value of each Portfolio Investment in the Portfolio no later than the 5th day of each calendar month or upon the reasonable request of the Portfolio Manager (but no more frequently than three (3) requests per calendar month). Any notification from the Administrative Agent to the Company that the events set forth in clause (A)(i) of the definition of the term Market Value Event have occurred and are continuing shall be accompanied by a written statement showing the then-current Market Value of each Portfolio Investment.
Each of the Company and the Portfolio Manager acknowledge and agree that (i) all determinations made by the Administrative Agent in connection with the Market Value of any Portfolio Investment will be made solely for purposes of this Agreement in accordance with the methodology set forth above, (ii) neither the Administrative Agent nor any of its Affiliates will have any obligation to provide the same or similar market value quotations or determinations in any other context, including, without limitation, in connection with any other lending facility provided by the Administrative Agent or any of its Affiliates (or for which any such person acts in an agency capacity) or any arrangement whereby the Administrative Agent or any of its Affiliates provides valuation or similar services and (iii) the Administrative Agent and/or any of its Affiliates may value any Portfolio Investment on its own books and records for any purpose differently than they are valued for any purpose under this Agreement.
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βMarket Value Cureβ means, on any date of determination, (i) with the consent of the Administrative Agent, the contribution by the Parent of additional Portfolio Investments and the pledge and Delivery thereof by the Company to the Collateral Agent pursuant to the terms hereof, (ii) the contribution by the Parent of cash to the Company and the pledge and Delivery thereof by the Company to the Collateral Agent pursuant to the terms hereof (which amounts shall be deposited in the MV Cure Account), (iii) the sale by the Company of one or more Portfolio Investments in accordance with the requirements of this Agreement, (iv) the prepayment by the Company of an aggregate principal amount of Advances (together with accrued and unpaid interest thereon and any prepayment premium payable pursuant to Section 4.03(c)(ii)(B)) or (v) any combination of the foregoing clauses (i), (ii), (iii) and (iv), in each case during the Market Value Cure Period, at the option of the Portfolio Manager, and in an amount such that the Net Asset Value exceeds the product of (a) the Market Value Cure Level specified on the Transaction Schedule and (b) the Net Advances; provided that, any Portfolio Investment contributed to the Company in connection with the foregoing must meet all of the applicable Eligibility Criteria (unless otherwise consented to by the Administrative Agent) and the Concentration Limitations shall be satisfied after such contribution or, if not satisfied immediately prior to such contribution, maintained or improved. For the purposes of any request for consent of the Administrative Agent pursuant to clause (i) in the immediately preceding sentence, if the Company notifies the Administrative Agent on the day on which the events set forth in clause (A)(i) of the definition of the term Market Value Event has occurred and is continuing of its intention to contribute a Portfolio Investment to the Company to cure such event and requests the related consent thereto, the Administrative Agent shall respond to such request no later than one (1) Business Day after such notice is received. In connection with any Market Value Cure, a Portfolio Investment shall be deemed to have been contributed to the Company if there has been a valid, binding and enforceable contract for the assignment of such Portfolio Investment to the Company and, in the reasonable judgment of the Portfolio Manager, such assignment will settle, in the case of a Loan, within fifteen (15) Business Days thereof (or such longer period of time agreed to by the Administrative Agent in its sole discretion) and, in the case of any other Portfolio Investment, within three (3) Business Days thereof (or such longer period of time agreed to by the Administrative Agent in its sole discretion). The Portfolio Manager shall use its commercially reasonable efforts to effect any such assignment within such time period.
Each of the Company and the Portfolio Manager acknowledge and agree that (i) all determinations made by the Administrative Agent in connection with the Market Value of any Portfolio Investment will be made solely for purposes of this Agreement in accordance with the methodology set forth above, (ii) neither the Administrative Agent nor any of its Affiliates will have any obligation to provide the same or similar market value quotations or determinations in any other context, including, without limitation, in connection with any other lending facility provided by the Administrative Agent or any of its Affiliates (or for which any such person acts in an agency capacity) or any arrangement whereby the Administrative Agent or any of its Affiliates provides valuation or similar services and (iii) the Administrative Agent and/or any of its Affiliates may value any Portfolio Investment on its own books and records for any purpose differently than they are valued for any purpose under this Agreement.
βMarket Value Cure Failureβ means the failure by the Company to effect a Market Value Cure as set forth in the definition of such term.
βMarket Value Cure Periodβ means the period commencing on the Business Day on which the Portfolio Manager receives notice from the Administrative Agent (which if received after 2:00 p.m., New York City time, on any Business Day, shall be deemed to have been received on the next succeeding Business Day) of the occurrence of the events set forth in clause (A)(i) of the definition of the term Market Value Event and ending at (x) the close of business in New York two (2) Business Days thereafter or (y) such later date and time as may be agreed to by the Administrative Agent in its sole discretion.
βMarket Value Eventβ means (A) the occurrence of both of the following events (i) the Administrative Agent shall have determined and notified the Portfolio Manager in writing as of any date that the Net Asset Value does not equal or exceed the product of (a) the Market Value Trigger specified on the Transaction Schedule and (b) the Net Advances and (ii) a Market Value Cure Failure or (B) if in connection with any Market Value Cure, a Portfolio Investment sold, contributed or deemed to have been contributed to the Company shall fail to settle within (i) in the case of a Loan, fifteen (15) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) from the related Trade Date thereof and (ii) in the case of any other Portfolio Investment, three (3) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) from the related Trade Date thereof; provided that the failure of such sale, contribution or deemed contribution to settle within the applicable time frame shall not constitute a βMarket Value Eventβ if the Net Asset Value exceeds the product of (a) the Market Value Cure Level specified on the Transaction Schedule and (b) the Net Advances without giving effect to such failed sale, contribution or deemed contribution.
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βMaterial Adverse Effectβ means a material adverse effect on (a) the business, assets, operations or condition, financial or otherwise, of the Company, the Seller, or the Portfolio Manager, taken as a whole, (b) the ability of the Company, the Seller or the Portfolio Manager to perform its obligations under this Agreement or any of the other Loan Documents or (c) the rights of or benefits available to the Agents or the Lenders under this Agreement or any of the other Loan Documents.
βMaterial Amendmentβ means any amendment, modification or supplement to this Agreement that (i) increases the Financing Commitment of any Lender, (ii) reduces the principal amount of any Advance or reduces the rate of interest thereon, or reduces any fees payable to a Lender hereunder, (iii) postpones the scheduled date of payment of the principal amount of any Advance, or any interest thereon, or any other amounts payable hereunder, or reduces the amount of, waives or excuses any such payment, or postpones the scheduled date of expiration of any Financing Commitment, (iv) changes any provision in a manner that would alter the pro rata sharing of payments required hereby or (v) changes any of the provisions of this definition or the definition of βRequired Lendersβ or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder.
βMaturity Dateβ means the date that is the earliest of (1) the Scheduled Termination Date set forth on the Transaction Schedule, (2) the date on which the Secured Obligations become due and payable upon the occurrence of an Event of Default under Article VII and the acceleration of the Secured Obligations, (3) the date on which the principal amount of the Advances is irrevocably reduced to zero as a result of one or more prepayments and the Financing Commitments are irrevocably terminated and (4) the date after a Market Value Event on which all Portfolio Investments have been sold and the proceeds therefrom have been received by the Company.
βMaximum Rateβ has the meaning set forth in Section 10.08.
βMezzanine Obligationβ means a Portfolio Investment which is not a Senior Secured Loan or a Second Lien Loan.
βMinimum Funding Amountβ means, on any date of determination, the amount set forth in the table below:
Period Start Date | Period End Date | Minimum Funding Amount (U.S.$) |
Effective Date | The 13th day following the Effective Date | 0 |
The 14th day following the Effective Date | The day prior to the last day of the Ramp-Up Period | 120,000,000 |
The last day of the Ramp-Up Period | The last day of the Reinvestment Period | 240,000,000 |
βMV Cure Accountβ has the meaning set forth in Section 8.01(a).
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βNationally Recognized Valuation Providerβ means (i) Lincoln International LLC (f/k/a Lincoln Partners LLC), (ii) Duff & Xxxxxx Corp., (iii) Valuation Research Corporation and (iv) Hilco Capital; provided that any independent entity providing professional asset valuation services may be added to this definition by the Company from time to time with the consent of the Administrative Agent or added to this definition by the Administrative Agent from time to time with the consent of the Company; provided, further, that the Administrative Agent may, with the consent of the Company, remove any provider from this definition by written notice to the Company and the Portfolio Manager so long as, after giving effect to such removal, there are at least three providers designated pursuant to this definition.
βNet Advancesβ means the principal amount of the outstanding Advances (inclusive of Advances that have been requested for any outstanding Purchase Commitments which have traded but not settled) minus the amounts then on deposit in the Accounts (including cash and Eligible Investments) representing Principal Proceeds.
βNet Asset Valueβ means, on any date of determination of the sum of (A) the sum, with respect to each Portfolio Investment (both owned by the Company and in respect of which there is an outstanding Purchase Commitment that has not settled) other than the unfunded commitment amount of the Delayed Funding Term Loan or a Revolving Loan, of the product of (x) the Market Value of such Portfolio Investment multiplied by (y) the funded principal amount of such Portfolio Investment plus (B) the amounts then on deposit in the Unfunded Exposure Account (including cash and Eligible Investments); provided that, for the avoidance of doubt, (1) the Concentration Limitation Excess, (2) any Portfolio Investment which has traded but not settled (x) in the case of a Loan, within fifteen (15) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) from the related Trade Date thereof and (y) in the case of any other Portfolio Investment, within three (3) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) from the related Trade Date thereof and (3) any Ineligible Investments will be excluded from the calculation of the Net Asset Value and assigned a value of zero for such purposes.
βNew York Collateralβ has the meaning set forth in Section 8.02(b).
βNon-Call Periodβ means the period beginning on, and including, the Effective Date and ending on, but excluding, December 13, 2017.
βNotice of Acquisitionβ has the meaning set forth in Section 1.02(a).
βNZDβ means New Zealand dollars.
βOther Connection Taxesβ means, with respect to any Secured Party, Taxes imposed as a result of a present or former connection between such Secured Party and the jurisdiction imposing such Tax (other than connections arising from such Secured Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Advance or Loan Document).
βOther Taxesβ means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
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βParentβ means Corporate Capital Trust, Inc.
βParent Credit Agreementβ means that certain Senior Secured Revolving Credit Agreement, dated as of September 4, 2013, among the Borrower, JPMorgan Chase Bank, N.A., as administrative agent, ING Capital LLC, as syndication agent and the lenders party thereto, as the same may be amended or modified from time to time.
βParticipant Registerβ has the meaning specified in Section 10.06(d).
βParticipation Interestβ means a participation interest in a Loan or a debt security.
βPATRIOT Actβ has the meaning set forth in Section 2.04(f).
βPermitted Distributionβ means, on any Business Day, distributions of Interest Proceeds or (during the Reinvestment Period) Principal Proceeds to the Parent (or other permitted equity holders of the Company); provided that amounts may be distributed pursuant to this definition only to the extent of available Excess Interest Proceeds and Principal Proceeds and only so long as (i) no Event of Default has occurred and is continuing (or would occur after giving effect to such Permitted Distribution), (ii) no Market Value Event shall have occurred (or would occur after giving effect to such Permitted Distribution), (iii) the Borrowing Base Test is satisfied (and will be satisfied after giving effect to such Permitted Distribution); provided that, with respect to any Permitted Distribution consisting of Interest Proceeds only, the βARβ in the definition of the term Borrowing Base Test will be deemed to be 63.5%, (iv) the Company gives at least two (2) Business Daysβ prior written notice thereof to the Administrative Agent, the Collateral Agent and the Collateral Administrator and (v) the Company and the Administrative Agent confirm in writing (which may be by email) to the Collateral Agent and the Collateral Administrator that the conditions to a Permitted Distribution set forth herein are satisfied; provided further that the Parent may contribute Portfolio Investments to the Company in order to enable the Company to satisfy the foregoing conditions.
βPermitted Insurance Companyβ means each of the entities agreed to among the Company, the Portfolio Manager and the Administrative Agent in a letter agreement dated as of the date hereof.
βPermitted Lienβ means any of the following: (a) Liens for Taxes if such Taxes shall not at the time be due and payable or if a Person shall currently be contesting the validity thereof in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of such Person, (b) Liens imposed by law, such as materialmenβs, warehousemenβs, mechanicsβ, carriersβ, workmenβs and repairmenβs Liens and other similar Liens, arising by operation of law in the ordinary course of business for sums that are not overdue or are being contested in good faith, (c) with respect to any collateral underlying a Portfolio Investment, the Lien in favor of the Company and Liens permitted under the related underlying instruments, (d) as to agented Portfolio Investments, Liens in favor of the agent on behalf of all the lenders of the related obligor, and (e) Liens granted pursuant to or by the Loan Documents.
βPermitted Non-USD Currencyβ means AUD, CAD, GBP, NZD and Euros.
βPermitted Non-USD Currency Accountsβ means any account established by the Intermediary in its own name at its designated custodian in an applicable jurisdiction to hold cash or Portfolio Investments denominated in a Permitted Non-USD Currency for its clients on an unsegregated basis.
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βPermitted Revolver Assigneeβ means any bank or broker-dealer that has a long-term unsecured debt rating (or substantially similar rating) of at least βBBB+β (or its equivalent) from at least one nationally recognized statistical rating organization.
βPermitted Tax Distributionβ means distributions to the Parent (from the Accounts or otherwise) to the extent required to allow the Parent to make sufficient distributions to qualify as a regulated investment company, and to otherwise eliminate federal or state income or excise taxes payable by the Parent in or with respect to any taxable year of the Parent (or any calendar year, as relevant); provided that (A) the amount of any such payments made in or with respect to any such taxable year (or calendar year, as relevant) of the Parent shall not exceed 115% of the amounts that the Company would have been required to distribute to the Parent to: (i) allow the Company to satisfy the minimum distribution requirements that would be imposed by Section 852(a) of the Code (or any successor thereto) to maintain its eligibility to be taxed as a regulated investment company for any such taxable year, (ii) reduce to zero for any such taxable year the Companyβs liability for federal income taxes imposed on (x) its investment company taxable income pursuant to Section 852(b)(1) of the Code (or any successor thereto), or (y) its net capital gain pursuant to Section 852(b)(3) of the Code (or any successor thereto), and (iii) reduce to zero the Companyβs liability for federal excise taxes for any such calendar year imposed pursuant to Section 4982 of the Code (or any successor thereto), in the case of each of (i), (ii) or (iii), calculated assuming that the Company had qualified to be taxed as a regulated investment company under the Code and (B) amounts may be distributed pursuant to this definition only from Excess Interest Proceeds and so long as (i) the Borrowing Base Test is satisfied, (ii) the Company gives at least two (2) Business Days prior notice thereof to the Administrative Agent, the Collateral Agent and the Collateral Administrator, (iii) if any such Permitted Tax Distributions are made after the occurrence and during the continuance of an Event of Default, the amount of Permitted Tax Distributions made in any 90 calendar day period shall not exceed U.S.$1,000,000 and (iv) the Company and the Administrative Agent have confirmed in writing (which may be by email) to the Collateral Agent and the Collateral Administrator that the conditions to a Permitted Tax Distribution set forth herein are satisfied.
βPersonβ means any natural person, corporation, partnership, trust, limited liability company, association, Governmental Authority or unit, or any other entity, whether acting in an individual, fiduciary or other capacity.
βPlanβ means any βemployee benefit planβ (as such term is defined in Section 3(3) of ERISA) subject to Section 412 of the Code or Title IV of ERISA established by the Company, the Parent or any ERISA Affiliate.
βPlan Asset Rulesβ means the regulations issued by the United States Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the United States Code of Federal Regulations, as modified by Section 3(42) of ERISA.
βPortfolioβ means all Portfolio Investments Purchased hereunder and not otherwise sold or liquidated.
βPortfolio Investmentsβ has the meaning set forth in the introductory section of this Agreement.
βPortfolio Managerβ has the meaning set forth in the introductory section of this Agreement.
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βPrime Rateβ means the rate of interest per annum publicly announced from time to time by JPMCB as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
βPrincipal Proceedsβ means all amounts received with respect to the Portfolio Investments or any other Collateral, and all amounts otherwise on deposit in the Accounts (including cash contributed by the Company), in each case other than Interest Proceeds or amounts on deposit in the Unfunded Exposure Account.
βPriority of Paymentsβ has the meaning set forth in Section 4.05.
βProceedingβ has the meaning set forth in Section 10.07(b).
βPurchaseβ means each acquisition of a Portfolio Investment hereunder, including, for the avoidance of doubt, by way of a contribution by the Parent to the Company pursuant to the Sale Agreement.
βPurchase Commitmentβ has the meaning set forth in Section 1.02(a).
βRamp-Up Periodβ means the period from and including the Effective Date to, but excluding, May 29, 2017.
βRegisterβ has the meaning set forth in Section 3.01(c).
βReinvestment Periodβ means the period beginning on, and including, the Effective Date and ending on, but excluding, the earliest of (i) November 29, 2019, (ii) the date on which a Market Value Event occurs and (iii) the date on which an Event of Default occurs.
βRelated Partiesβ has the meaning set forth in Section 9.01.
βRequired Lendersβ means Lenders with respect to 66 2/3% or more of the sum of (i) the aggregate principal amount of the outstanding Advances plus (ii) the aggregate undrawn amount of the outstanding Financing Commitments.
βResponsible Officerβ means with respect to the Collateral Agent or the Collateral Administrator, any officer of the Collateral Agent customarily performing functions with respect to corporate trust matters and, with respect to a particular corporate trust matter under this Agreement, any other officer to whom such matter is referred because of such officerβs knowledge of and familiarity with the particular subject in each case, having direct responsibility for the administration of this Agreement.
βRestricted Paymentβ means (i) any dividend or other distribution (including, without limitation, a distribution of non-cash assets), direct or indirect, on account of any shares or other equity interests in the Company now or hereafter outstanding; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, by the Company of any shares or other equity interests in the Company now or hereafter outstanding; and (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares or other equity interests in the Company now or hereafter outstanding.
βReuters Screenβ means Reuters Screen LIBOR 01 Page on the Bloomberg Financial Markets Commodities News (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to U.S. dollar deposits in the London interbank market).
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βRevolving Amountβ means, on any date of determination during the Reinvestment Period, the aggregate principal amount of Advances in excess of the then-current Minimum Funding Amount.
βRevolving Loanβ means any Loan (other than a Delayed Funding Term Loan, but including funded and unfunded portions of revolving credit lines not backed by cash and letter of credit facilities, unfunded commitments under specific facilities and other similar Loans and investments) that under the underlying instruments relating thereto may require one or more future advances to be made to the obligor by a creditor, but any such Loan will be a Revolving Loan only until all commitments by the holders thereof to make advances to the obligor thereon expire or are terminated or are irrevocably reduced to zero.
βSale Agreementβ has the meaning set forth in the introductory section of this Agreement.
βSanctioned Countryβ means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Sudan, Syria and Crimea).
βSanctioned Personβ means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union, any EU member state, Her Majestyβs Treasury of the United Kingdom or any other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).
βSanctionsβ means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any EU member state, Her Majestyβs Treasury of the United Kingdom or any other relevant sanctions authority.
βSecond Lien Loanβ means a Loan (i) that is secured by a pledge of collateral, which security interest is validly perfected and second priority (subject to liens for Taxes or regulatory charges and any other liens permitted under the related underlying instruments that are reasonable and customary for similar Loans) under Applicable Law (other than a Loan that is second priority to a Permitted Working Capital Lien) and (ii) the Portfolio Manager determines in good faith that the value of the collateral securing the Loan (including based on enterprise value) on or about the time of origination or acquisition by the Company equals or exceeds the outstanding principal balance thereof plus the aggregate outstanding balances of all other Loans of equal or higher seniority secured by the same collateral.
βSecured Partyβ has the meaning set forth in Section 8.02(a).
βSecured Obligationβ has the meaning set forth in Section 8.02(a).
βSecurities Intermediaryβ has the meaning set forth in the introductory section of this Agreement.
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βSellerβ has the meaning set forth in the introductory section of this Agreement.
βSenior Secured Loanβ means any interest in a Loan, including any assignment of or participation in or other interest in a Loan, that (i) is not (and is not expressly permitted by its terms to become) subordinate in right of payment to any obligation of the obligor in any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings (other than pursuant to a Permitted Working Capital Lien and customary waterfall provisions contained in the applicable loan agreement), (ii) is secured by a pledge of collateral, which security interest is (a) validly perfected and first priority under Applicable Law (subject to liens permitted under the applicable credit agreement that are reasonable for similar Loans, and liens accorded priority by law in favor of any Governmental Authority) or (b)(1) validly perfected and second priority in the accounts, documents, instruments, chattel paper, letter-of-credit rights, supporting obligations, deposit accounts, investments accounts (as such terms are defined in the UCC) and any other assets securing any Working Capital Revolver under Applicable Law and proceeds of any of the foregoing (a first priority lien on such assets a βPermitted Working Capital Lienβ) and (2) validly perfected and first priority (subject to liens for Taxes or regulatory charges and any other liens permitted under the related underlying instruments that are reasonable and customary for similar Loans) in all other collateral under Applicable Law, and (iii) the Portfolio Manager determines in good faith that the value of the collateral for such Loan (including based on enterprise value) on or about the time of acquisition equals or exceeds the outstanding principal balance of the Loan plus the aggregate outstanding balances of all other Loans of equal or higher seniority secured by a first priority Lien over the same collateral. For the avoidance of doubt, debtor-in-possession Loans shall constitute Senior Secured Loans.
βSettlement Dateβ has the meaning set forth in Section 1.03.
βSolventβ means, with respect to any Person, that as of the date of determination, (a) the sum of such Personβs debt (including contingent liabilities) does not exceed the present fair value of such Personβs present assets; (b) such Personβs capital is not unreasonably small in relation to its business as contemplated on the date of this Agreement; and (c) such Person has not incurred debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise). For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
βSpecified Matterβ means any Amendment of a Portfolio Investment that (a) reduces the principal amount of such Portfolio Investment, (b) reduces the rate of interest payable on such Portfolio Investment, (c) postpones the due date of any scheduled payment or distribution in respect of such Portfolio Investment, (d) alters the pro rata allocation or sharing of payments or distributions required by any related underlying instrument in a manner adverse to the Company, (e) releases any material guarantor of such Portfolio Investment from its obligations, (f) terminates or releases any lien on a material portion on the collateral securing such Portfolio Investment, (g) changes any of the provisions of any such underlying instrument specifying the number or percentage of lenders required to effect any of the foregoing or (h) materially changes any of the covenants related to the financial condition of the obligor, including, but not limited to, those related to the ratio of funded indebtedness to EBITDA (or other relevant accounting metric), senior funded indebtedness to EBITDA (or other relevant accounting metric), interest and fixed charge coverage ratios and minimum EBITDA (or other relevant accounting metric).
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βSpot Rateβ means, as of any date of determination, (x) with respect to actual currency exchange between U.S. dollars and AUD, CAD, Euros, GBP or NZD, the applicable currency-Dollar rate available through State Street Bank and Trust Companyβs banking facilities (or, if State Street Bank and Trust Company has notified the Administrative Agent and the Company that it will no longer provide such services or if State Street Bank and Trust Company or one of its affiliates is no longer the Collateral Agent, through such other source agreed to by the Administrative Agent in writing) and (y) with respect to all other purposes between U.S. dollars and AUD, CAD, Euros, GBP or NZD, the applicable currency-Dollar spot rate that appeared on the Bloomberg screen for such currency at 5:00 p.m. New York City time on the immediately preceding Business Day. The determination of the Spot Rate shall be conclusive absent manifest error.
βSubsidiaryβ of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.
βTaxesβ means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
βTrade Dateβ has the meaning set forth in Section 1.03.
βTransaction Scheduleβ has the meaning set forth in the introductory section of this Agreement.
βUCCβ has the meaning set forth in Section 8.01(b).
βUnfunded Exposure Accountβ has the meaning set forth in Section 8.01(a).
βUnfunded Exposure Amountβ means, on any date of determination, with respect to any Delayed Funding Term Loan or Revolving Loan, an amount equal to the aggregate amount of all unfunded commitments (in the case of unfunded commitments denominated in AUD, CAD, Euro, GBP and NZD, converted to U.S. dollars at the Spot Rate on such date of determination) associated with such Delayed Funding Term Loan or Revolving Loan, as applicable; provided that, on the last day of the Reinvestment Period, the Unfunded Exposure Amount of any Revolving Loan shall be an amount equal to the aggregate amount of all potential future funding commitments with respect thereto.
βUnfunded Exposure Shortfallβ means, on any date of determination, an amount equal to the greater of (x) 0 and (y) the aggregate Unfunded Exposure Amount minus the amounts on deposit in the Unfunded Exposure Account.
βU.S. Personβ means any Person that is a βUnited States personβ as defined in Section 7701(a)(30) of the Code.
βU.S. Tax Compliance Certificateβ has the meaning set forth in Section 3.03(f).
βWorking Capital Revolverβ means a revolving lending facility secured by all or a portion of the current assets of the related obligor, which current assets subject to such security interest do not constitute a material portion of the obligorβs total assets.
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ARTICLE
I
THE PORTFOLIO INVESTMENTS
SECTION 1.01. Purchases of Portfolio Investments. On the Effective Date, the Company may acquire the Initial Portfolio Investments from the Seller pursuant to the Sale Agreement, subject to the conditions specified in this Agreement. From time to time during the Reinvestment Period, the Company may Purchase additional Portfolio Investments, or request that Portfolio Investments be Purchased for the Companyβs account, all on and subject to the terms and conditions set forth herein.
SECTION 1.02. Procedures for Purchases and Related Advances.
(a) Timing of Notices of Acquisition. No later than five (5) Agent Business Days (or such shorter period as the Administrative Agent may agree in its sole discretion) before the date on which the Company proposes that a binding commitment to acquire any Portfolio Investment (other than an Initial Portfolio Investment) be made by it or for its account (a βPurchase Commitmentβ), the Portfolio Manager, on behalf of the Company, shall deliver to the Administrative Agent a notice of acquisition (a βNotice of Acquisitionβ).
(b) Contents of Notices of Acquisition. Each Notice of Acquisition shall consist of one or more electronic submissions to the Administrative Agent (in such format and transmitted in such a manner as the Administrative Agent, the Portfolio Manager and the Company may reasonably agree (which shall initially be the format and include the information regarding such Portfolio Investment identified on Schedule 2)), and shall be accompanied by such other information as the Administrative Agent may reasonably request.
(c) Eligibility of Portfolio Investments. The Administrative Agent shall have the right, on behalf of all Lenders, to reasonably request additional information regarding any proposed Portfolio Investment. The Administrative Agent shall notify the Portfolio Manager and the Company (including via e-mail or other customary electronic messaging system) of its approval or failure to approve each Portfolio Investment proposed to be acquired pursuant to a Notice of Acquisition (and, if approved, an initial determination of the Market Value for such Portfolio Investment) no later than the fifth (5th) Agent Business Day succeeding the date on which it receives such Notice of Acquisition and any information reasonably requested in connection therewith); provided that any Initial Portfolio Investment shall be deemed to be approved by the Administrative Agent. The failure of the Administrative Agent to approve the acquisition of a Portfolio Investment will not prohibit the Company from acquiring such Portfolio Investment (subject to the conditions set forth in Section 1.03); provided that any Portfolio Investment not so approved prior to its Trade Date shall be deemed to be an Ineligible Investment until such later date (if any) on which such Portfolio Investment is so approved.
SECTION 1.03. Conditions to Purchases and Advances. No Purchase Commitment, Purchase or Advance shall be entered into or made unless each of the following conditions is satisfied (or waived as provided below) (provided that only clauses (3) and (4) below shall be applicable to an Advance that does not correspond to any Purchase Commitment or Purchase) as of the date on which such Purchase Commitment is entered into (such Portfolio Investmentβs βTrade Dateβ) or such Advance would otherwise be made and (i) such Portfolio Investment shall not be Purchased, and any related Advance or (ii) in the case of clauses (3) and (4) below, any other Advance shall not be required to be made available to the Company by the Lenders, unless each of the following conditions is satisfied or waived as of such Trade Date or proposed Advance date, as applicable:
(1) the information contained in the Notice of Acquisition accurately describes, in all material respects, such Portfolio Investment and, unless waived by the Administrative Agent, such Portfolio Investment satisfies the eligibility criteria set forth in Schedule 3 (the βEligibility Criteriaβ);
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(2) with respect to a Purchase, the proposed Settlement Date for such Portfolio Investment is not later than (i) in the case of a Loan, the date that is fifteen (15) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after such Trade Date or (ii) in the case of any other Portfolio Investment, the date that is three (3) Business Days (or such longer period of time agreed to by the Administrative Agent in its sole discretion) after such Trade Date;
(3) no Market Value Event has occurred and no Event of Default or event that, with notice or lapse of time or both, would constitute an Event of Default (a βDefaultβ), has occurred and is continuing, and the Reinvestment Period has not otherwise ended; and
(4) after giving pro forma effect to (i) the Purchase of such Portfolio Investment (if any) and the related Advance (if any) or (ii) any other Advance hereunder:
(w) the Borrowing Base Test is satisfied;
(x) the Concentration Limitations shall be satisfied or, if not satisfied immediately prior to such Purchase Commitment, maintained or improved;
(y) the aggregate principal balance of Advances then outstanding will not exceed the limit for Advances set forth in the Transaction Schedule; and
(z) in the case of a Purchase, the amount of such Advance (if any) shall be not less than U.S.$2,000,000; provided that the amount of the initial Advance shall be not less than U.S.$120,000,000.
The Administrative Agent, on behalf of the Lenders, may waive any conditions to a Purchase Commitment, a Purchase or an Advance, as the case may be, specified above in this Section 1.03 by written notice thereof to the Company, the Collateral Administrator, the Portfolio Manager and the Collateral Agent.
If the above conditions to a Purchase Commitment, a Purchase or an Advance are satisfied or waived, the Portfolio Manager shall determine, in consultation with the Administrative Agent and with notice to the Lenders and the Collateral Administrator, the date on which such Purchase (if any) shall settle (the βSettlement Dateβ for such Portfolio Investment) and/or on which any related Advance or other Advance shall be provided.
SECTION 1.04. Sales of Portfolio Investments. The Company will not sell, transfer or otherwise dispose of any Portfolio Investment or any other asset without the prior consent of the Administrative Agent (acting at the direction of the Required Lenders), except that, subject to Section 6.02(w), the Company may sell any Portfolio Investment (including any Ineligible Investment) or other asset without the consent of the Administrative Agent so long as, (x) after giving effect thereto, no Market Value Event has occurred and no Default or Event of Default has occurred and is continuing and (y) the sale of such asset by the Company shall be on an armβs-length basis at fair market value and in accordance with the Portfolio Managerβs standard market practices. In addition, within two (2) Business Days of any Revolving Loan or Delayed Funding Term Loan with an unfunded commitment becoming an Ineligible Investment, the Company, subject to clauses (x) and (y) in the immediately preceding sentence, shall sell such Revolving Loan or Delayed Funding Term Loan and shall pay any amount payable in connection with such sale.
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Notwithstanding anything in this Agreement to the contrary (but subject to this Section 1.04): (i) following the occurrence and during the continuance of an Event of Default, neither the Company nor the Portfolio Manager on its behalf shall have any right to cause the sale, transfer or other disposition of a Portfolio Investment or any other asset (including, without limitation, the transfer of amounts on deposit in the Accounts) without the prior written consent of the Administrative Agent (which consent may be granted or withheld in the sole discretion of the Administrative Agent), (ii) following the occurrence of a Market Value Event, the Company shall use commercially reasonable efforts to sell Portfolio Investments (individually or in lots, including a lot comprised of all of the Portfolio Investments) at the sole direction of, and in the manner (including, without limitation, the time of sale, sale price, principal amount to be sold and purchaser) required by the Administrative Agent (provided that the Administrative Agent shall only require sales at the direction of the Required Lenders and at a price of the then-current fair market value and in accordance with the Administrative Agentβs standard market practices) and the proceeds from such sales shall be used to prepay the Advances outstanding hereunder and (iii) following the occurrence of a Market Value Event, the Portfolio Manager shall have no right to act on behalf of, or otherwise direct, the Company, the Administrative Agent, the Collateral Agent or any other Person in connection with a sale of Portfolio Investments pursuant to any provision of this Agreement except with the prior written consent of the Administrative Agent (including email). Any prepayments made pursuant to this paragraph shall automatically reduce the Financing Commitments as provided in Section 4.07(c).
In connection with any sale of Portfolio Investments required by the Administrative Agent following the occurrence of a Market Value Event, the Administrative Agent or a designee of the Administrative Agent shall:
(i) notify the Company at the Designated Email Notification Address promptly upon distribution of bid solicitations regarding the sale of such Portfolio Investments; and
(ii) direct the Company to sell such Portfolio Investments to the Designated Independent Broker-Dealer if the Designated Independent Broker-Dealer provides the highest bid in the case where bids are received in respect of the sale of such Portfolio Investments, it being understood that if the Designated Independent Broker-Dealer provides a bid to the Administrative Agent that is the highest bona fide bid to purchase a Portfolio Investment on a line-item basis where such Portfolio Investment is part of a pool of Portfolio Investments for which there is a bona fide bid on a pool basis proposed to be accepted by the Administrative Agent (in its sole discretion), then the Administrative Agent shall accept any such line-item bid only if such line-item bid (together with any other line-item bids by the Designated Independent Broker-Dealer or any other bidder for other Portfolio Investments in such pool) is greater than the bid on a pool basis.
For purposes of this paragraph, the Administrative Agent shall be entitled to disregard as invalid any bid submitted by the Designated Independent Broker-Dealer if, in the Administrative Agentβs judgment (acting reasonably):
(A) either:
(x) the Designated Independent Broker-Dealer is ineligible to accept assignment or transfer of the relevant Portfolio Investments or any portion thereof, as applicable, substantially in accordance with the then-current market practice in the principal market for the relevant Portfolio Investments; or
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(y) the Designated Independent Broker-Dealer would not, through the exercise of its commercially reasonable efforts, be able to obtain any consent required under any agreement or instrument governing or otherwise relating to the relevant Portfolio Investments to the assignment or transfer of the relevant Portfolio Investments or any portion thereof, as applicable, to it; or
(B) such bid is not bona fide, including, without limitation, due to (x) the insolvency of the Designated Independent Broker-Dealer or (y) the inability, failure or refusal of the Designated Independent Broker-Dealer to settle the purchase of the relevant Portfolio Investments or any portion thereof, as applicable, or otherwise settle transactions in the relevant market or perform its obligations generally.
In connection with any sale of a Portfolio Investment directed by the Administrative Agent pursuant to this Section 1.04 and the application of the net proceeds thereof, the Company hereby appoints the Administrative Agent as the Companyβs attorney-in-fact (it being understood that the Administrative Agent shall not be deemed to have assumed any of the obligations of the Company by this appointment), with full authority in the place and stead of the Company and in the name of the Company to effectuate the provisions of this Section 1.04 (including, without limitation, the power to execute any instrument which the Administrative Agent or the Required Lenders may deem necessary or advisable to accomplish the purposes of this Section 1.04 or any direction or notice to the Collateral Agent in respect of the application of net proceeds of any such sales). None of the Administrative Agent, the Lenders, the Collateral Administrator, the Intermediary, the Collateral Agent or any Affiliate of any thereof shall incur any liability to the Company, the Portfolio Manager or any other Person in connection with any sale effected at the direction of the Administrative Agent in accordance with this Section 1.04, including, without limitation, as a result of the price obtained for any Portfolio Investment, the timing of any sale or sales of Portfolio Investments or the notice or lack of notice provided to any Person in connection with any such sale, so long as, in the case of the Administrative Agent only, any such sale does not violate Applicable Law.
SECTION 1.05. Certain Assumptions relating to Portfolio Investments. For purposes of all calculations hereunder, any Portfolio Investment for which the trade date in respect of a sale thereof by the Company has occurred, but the settlement date for such sale has not occurred, shall be considered to be owned by the Company until such settlement date.
SECTION 1.06. Valuation of Permitted Non-USD Currency Portfolio Investments. For purposes of all valuations and calculations hereunder, the principal amount and Market Value of all Portfolio Investments and Eligible Investments denominated in a Permitted Non-USD Currency and proceeds denominated in a Permitted Non-USD Currency on deposit in any Permitted Non-USD Currency Account shall be converted to U.S. dollars at the Spot Rate in accordance with the definition of such term in consultation with the Administrative Agent on the applicable date of valuation or calculation, as applicable.
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SECTION 2.02. [Reserved].
SECTION 2.03. Advances; Use of Proceeds.
(a) Subject to the satisfaction or waiver of the conditions to the Purchase of a Portfolio Investment and/or an Advance set forth in Section 1.03 as of (i) both the related Trade Date and Settlement Date and/or (ii) the Advance date, as applicable, the Lenders will (ratably in accordance with their respective Financing Commitments) make the applicable Advance available to the Company on the related Settlement Date (or otherwise on the related Advance date if no Portfolio Investment is being acquired on such date) as provided herein.
(b) Except as expressly provided herein, the failure of any Lender to make any Advance required hereunder shall not relieve any other Lender of its obligations hereunder. If any Lender shall fail to provide any Advance to the Company required hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lenderβs obligations hereunder until all such unsatisfied obligations are fully paid.
(c) Subject to Section 2.03(e), the Company shall use the proceeds of the Advances received by it hereunder to purchase the Portfolio Investments identified in the related Notice of Acquisition or to make advances to the obligor of Delayed Funding Term Loans or Revolving Loans in accordance with the underlying instruments relating thereto; provided that, if the proceeds of an Advance are deposited in the Collection Account as provided in Section 3.01 prior to or on the Settlement Date for any Portfolio Investment but the Company is unable to Purchase such Portfolio Investment on the related Settlement Date, or if there are proceeds of such Advance remaining after such Purchase, then, subject to Section 3.01(a), upon written notice from the Portfolio Manager the Collateral Agent shall apply such proceeds as provided in Section 4.05. The proceeds of the Advances shall not be used for any other purpose.
(d) With respect to any Advance, the Portfolio Manager shall, on behalf of the Company, submit a request substantially in the form of Exhibit A to the Lenders and the Administrative Agent, with a copy to the Collateral Agent and the Collateral Administrator, not later than 2:00 p.m. New York City time, one (1) Business Day prior to the Business Day specified as the date on which such Advance shall be made and, upon receipt of such request, the Lenders shall make such Advances in accordance with the terms set forth in Section 3.01. Any requested Advance shall be in an amount such that, after giving effect thereto and the related purchase (if any) of the applicable Portfolio Investment(s), the Borrowing Base Test is satisfied.
(e) (i) If the Company receives written notice (which, if received after 2:00 p.m., New York City time, on any Business Day, shall be deemed to have been received on the next succeeding Business Day) or becomes actually aware that an Unfunded Exposure Shortfall will occur on any Business Day (a βShortfall Determination Dateβ), the Company may and (with respect to any Unfunded Exposure Shortfall not funded pursuant to clause (e)(ii) below shall), deposit cash and/or Eligible Investments from other sources into the Unfunded Exposure Account to satisfy all or a portion of such Unfunded Exposure Shortfall as of such Shortfall Determination Date no later than the Business Day following the earlier of (x) receipt of such notice or (y) the Company becoming actually aware of such Unfunded Exposure Shortfall (the βShortfall Cutoff Dateβ).
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(ii) To the extent the Company does not deposit cash and/or Eligible Investments into the Unfunded Exposure Account in amount equal to the Unfunded Exposure Shortfall as of the Shortfall Determination Date by the Shortfall Cutoff Date, the Company shall be deemed on such Shortfall Cutoff Date to have requested an Advance on the immediately succeeding Business Day, and the Lenders shall, subject to the satisfaction of Section 1.03(3) through (4)(y) on the date of such request and the date of such Advance, make a corresponding Advance on such immediately succeeding Business Day (with written notice to the Collateral Administrator by the Administrative Agent) in accordance with Article III in amount equal to the remaining Unfunded Exposure Shortfall as of such Shortfall Determination Date (after giving effect to any deposits of cash and/or Eligible Investments in accordance with clause (e)(i) above, if any). The proceeds of any such Advance shall be deposited into the Unfunded Exposure Account.
(iii) After giving effect to such Advances and other deposits, the amounts (including cash and Eligible Investments) in the Unfunded Exposure Account shall at all times equal not less than the Unfunded Exposure Amount.
(f) Without limitation to clause (e) above, the Company shall not acquire any unfunded commitment under any Revolving Loan or Delayed Funding Term Loan unless, on a pro forma basis after giving effect to such purchase, the Borrowing Base Test and item 8 of the Concentration Limitations will each be satisfied.
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(i) Other Documents. Such other documents as the Administrative Agent may reasonably require.
ARTICLE
III
ADDITIONAL TERMS APPLICABLE TO THE Advances
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Any Lender may request that Advances made by it be evidenced by a promissory note. In such event, the Company shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if a registered note is requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed). Thereafter, the Advances evidenced by such promissory note and interest thereon shall at all times be represented by one or more promissory notes in such form payable to the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
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(i) If any Change in Law shall:
(A) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender; or
(B) subject any Lender or the Administrative Agent to any Taxes (other than (x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (z) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or the Administrative Agent of making, continuing, converting or maintaining any Advance or to reduce the amount of any sum received or receivable by such Lender or the Administrative Agent hereunder (whether of principal, interest or otherwise), then, upon request by such Lender or the Administrative Agent, the Company will pay to such Lender or the Administrative Agent, as the case may be, such additional amount or amounts as will compensate such Lender or the Administrative Agent, as the case may be, for such additional costs incurred or reduction suffered.
(ii) A certificate of a Lender or the Administrative Agent, as the case may be, setting forth the amount or amounts necessary to compensate, and the basis for such compensation of, such Lender, its holding company or the Administrative Agent, as the case may be, as specified in paragraph (i) of this Section 3.01(f) shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(iii) Failure or delay on the part of any Lender or the Administrative Agent to demand compensation pursuant to this Section shall not constitute a waiver of such Lenderβs or the Administrative Agentβs right to demand such compensation; provided that the Company shall not be required to compensate a Lender or the Administrative Agent pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Administrative Agent notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lenderβs or the Administrative Agentβs intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(iv) Each of the Lenders and the Administrative Agent agrees that it will take such commercially reasonable actions as the Company may reasonably request that will avoid the need to pay, or reduce the amount of, any increased amounts referred to in this Section 3.01(f); provided that no Lender or the Administrative Agent shall be obligated to take any actions that would, in the reasonable opinion of such Lender or the Administrative Agent, subject such Lender or the Administrative Agent to any material unreimbursed cost or expense or would otherwise be disadvantageous to such Lender or the Administrative Agent (including, without limitation, due to a loss of money). In no event will the Company be responsible for increased amounts referred to in this Section 3.01(f) which relates to any other entities to which any Lender provides financing.
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(v) If any Lender (A) provides notice of unlawfulness or requests compensation under clause (e) above, this clause (f) or Section 3.03, (B) defaults in its obligation to make Advances hereunder or (C) becomes the subject of a Bail-In Action, then the Company may, at its sole expense and effort, upon written notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights and obligations under this Agreement and the related transaction documents to an assignee identified by the Company that shall assume such obligations (whereupon such Lender shall be obligated to so assign), provided that, (x) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder through the date of such assignment and (y) a Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply. No prepayment fee that may otherwise be due hereunder shall be payable to such Lender in connection with any such assignment.
(vi) If any Lender provides notice of unlawfulness or requests compensation under clause (e) above, this clause (f) or Section 3.03, then such Lender shall (at the request of the Company) use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to clause (e), this clause (f) or Section 3.03, as the case may be, in the future and (ii) would not subject such Lender to any cost or expense not required to be reimbursed by the Company and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
SECTION 3.02. [Reserved].
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(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), an executed IRS Form W-9 (or any applicable successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall deliver to the Company and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βinterestβ article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, an IRS Form W-8BEN or IRS Form W-8BEN-E or any applicable successor form establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βbusiness profitsβ or βother incomeβ article of such tax treaty;
(ii) an executed IRS Form W-8ECI (or any applicable successor form);
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a βbankβ within the meaning of Section 881(c)(3)(A) of the Code, is not a β10 percent shareholderβ of the Company or the Parent within the meaning of Section 881(c)(3)(B) of the Code, and is not a βcontrolled foreign corporationβ described in Section 881(c)(3)(C) of the Code (a βU.S. Tax Compliance Certificateβ) and (y) an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any applicable successor form); or
(iv) to the extent a Foreign Lender is not the beneficial owner, an executed IRS Form W-8IMY (or any applicable successor form), accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner.
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
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(D) if a payment made to a Lender under any Loan Document would be subject to withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lenderβs obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), βFATCAβ shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.
(E) The Administrative Agent shall deliver to the Company an electronic copy of an IRS Form W-9 upon becoming a party under this Agreement and thereafter promptly following any reasonable request by the Company. The Administrative Agent represents to the Company that it is not subject to backup withholding within the meaning of Section 3406 of the Code, it is a βU.S. personβ and a βfinancial institutionβ within the meaning of Treasury Regulations Section 1.1441-1 and a βU.S. financial institutionβ within the meaning of Treasury Regulations Section 1.1471-3T and that it will comply with its obligations to withhold under Section 1441 of the Code and FATCA.
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ARTICLE
IV
COLLECTIONS AND PAYMENTS
Interest Proceeds deposited into the Collection Account shall be retained in the Collection Account and held in cash and/or invested (and reinvested) at the written direction of the Company (or the Portfolio Manager on its behalf) delivered to the Collateral Agent in U.S. dollar denominated Cash Equivalents selected by the Portfolio Manager (unless an Event of Default has occurred and is continuing or a Market Value Event has occurred, in which case, selected by the Administrative Agent) (βEligible Investmentsβ). Eligible Investments shall mature no later than the end of the then-current Calculation Period.
Interest Proceeds on deposit in the Collection Account shall be withdrawn by the Collateral Agent (at the written direction of the Company (or, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, the Administrative Agent)) and applied (i) to make payments in accordance with this Agreement or (ii) to make Permitted Distributions or Permitted Tax Distributions in accordance with this Agreement.
The Portfolio Manager shall notify the Administrative Agent and the Collateral Agent if the Portfolio Manager reasonably determines in good faith that any amounts in the Collection Account have been deposited in error or do not otherwise constitute Interest Proceeds, whereupon such amounts on deposit in the Collection Account may be withdrawn by the Collateral Agent (at the direction of the Company and with written confirmation from the Administrative Agent (or, upon the occurrence and during the continuance of an Event of Default or upon the occurrence of a Market Value Event, the Administrative Agent)) on the next succeeding Business Day and remitted to or at the direction of the Company.
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All Principal Proceeds deposited into the Collection Account shall be retained in the Collection Account and invested at the written direction of the Administrative Agent in overnight Eligible Investments selected by the Portfolio Manager (unless an Event of Default has occurred and is continuing or a Market Value Event has occurred, in which case, selected by the Administrative Agent). All investment income on such Eligible Investments shall constitute Interest Proceeds.
Principal Proceeds on deposit in the Collection Account shall be withdrawn by the Collateral Agent (at the written direction of the Company (or, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, the Administrative Agent)) and applied (i) to make payments in accordance with this Agreement, (ii) to make Permitted Distributions in accordance with this Agreement or (iii) towards the purchase price of Portfolio Investments purchased in accordance with this Agreement, in each case with prior notice to the Administrative Agent. For the avoidance of doubt, Principal Proceeds received in connection with the sale of any Portfolio Investment pursuant to Section 1.04 following a Market Value Event shall be used to prepay Advances as set forth therein at the written direction of the Administrative Agent.
The Portfolio Manager shall notify the Administrative Agent and the Collateral Agent if the Portfolio Manager reasonably determines in good faith that any amounts in the Collection Account have been deposited in error or do not otherwise constitute Principal Proceeds, whereupon such amounts on deposit in the Collection Account may be withdrawn by the Collateral Agent (at the direction of the Company and with written confirmation from the Administrative Agent (or, upon the occurrence and during the continuance of an Event of Default or upon the occurrence of a Market Value Event, the Administrative Agent)) on the next succeeding Business Day and remitted to or at the direction of the Company.
SECTION 4.03. Principal and Interest Payments; Prepayments; Fees.
(a) The Company shall pay the unpaid principal amount of the Advances (together with accrued interest thereon) to the Administrative Agent for the account of each Lender on the Maturity Date in accordance with the Priority of Payments and any and all cash in the Accounts shall be applied to the satisfaction of the Secured Obligations on the Maturity Date and on each Additional Payment Date in accordance with the Priority of Payments.
(b) Accrued interest on the Advances shall be payable in arrears on each Interest Payment Date, each Additional Payment Date and on the Maturity Date in accordance with the Priority of Payments; provided that (i) interest accrued pursuant to the proviso to Section 3.01(b) shall be payable on demand and (ii) in the event of any repayment or prepayment of any Advances, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment. βInterest Payment Dateβ means the fifth Business Day after the last day of each Calculation Period.
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(c) (i) Subject to the requirements of this Section 4.03(c), the Company shall have the right from time to time to prepay outstanding Advances in whole or in part (A) on any Business Day that JPMorgan Chase Bank, National Association ceases to act as Administrative Agent, (B) subject to the payment of the premium described in clause (ii) below, in connection with a Market Value Cure or (C) subject to the payment of the premium described in clause (ii) below, during any Calculation Period; provided that the Company may not prepay any outstanding Advances in excess of the Revolving Amount pursuant to this Section 4.03(c)(i)(C) during the Non-Call Period. The Company shall notify the Administrative Agent, the Collateral Agent and the Collateral Administrator by electronic mail of an executed document (attached as a .pdf or similar file) of any prepayment pursuant to Section 4.03(c)(i)(A) or Section 4.03(c)(i)(C) not later than 2:00 p.m., New York City time, two (2) Business Days before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of the Advances to be prepaid. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Except in connection with a Market Value Cure, each partial prepayment of outstanding Advances shall be in an amount not less than U.S.$5,000,000. Prepayments shall be accompanied by accrued and unpaid interest.
(ii) Each prepayment or commitment reduction (A) pursuant to Section 4.03(c)(i)(C) and Section 4.07(a) that is made (I) after the Non-Call Period and on or prior to the first anniversary of the end of the Non-Call Period, whether in part or in full, shall be accompanied by a premium equal to 1.5% of the principal amount of such prepayment or commitment reduction and (II) after the first anniversary of the end of the Non-Call Period but during the Reinvestment Period, whether in full or in part, shall be accompanied by a premium equal to 1% of the principal amount of such prepayment or commitment reduction and (B) pursuant to Section 4.03(c)(i)(B) that is made during the Reinvestment Period, whether in full or in part, shall be accompanied by a premium equal to 1.25% of the principal amount of such prepayment or commitment reduction and, in each case at the request of any Lender in respect of any prepayment on a date other than an Interest Payment Date, any costs incurred by it in respect of the breakage of its funding at the LIBO Rate for the related Calculation Period; provided that no such premium payable pursuant to clause (A) above shall be payable with respect to any prepayment (or portion thereof) that does not exceed the Revolving Amount.
(d) The Company agrees to pay to the Administrative Agent, for the account of each Lender, a commitment fee in accordance with the Priority of Payments which shall accrue at 1.00% per annum (or, during the Ramp-Up Period, 0.50% per annum) on the average daily unused amount of the Financing Commitment of such Lender during the period from and including the date of this Agreement to but excluding the last day of the Reinvestment Period; provided, that if the Financing Commitment of any Lender is reduced as a result of a Bail-In Action, such Lenderβs commitment fee shall be calculated based on its Financing Commitment so reduced. Accrued commitment fees shall be payable in arrears on each Interest Payment Date, on the Maturity Date, on each Additional Payment Date and on the date on which the Financing Commitments terminate. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(e) The Company agrees to pay the Administrative Agent for the account of each Lender (i) on the date of this Agreement, an upfront fee in an aggregate amount equal to U.S.$1,500,000 and (ii) on each Accordion Date, a fee equal to 0.50% on the principal amount of the Advances made upon the exercise of such Accordion Option. Once paid, such fees or any part thereof shall not be refundable under any circumstances.
(f) The Company agrees to pay to the Administrative Agent, for the account of each Lender, an unfunded fee in the amount of the LIBO Rate for the applicable Calculation period plus the Applicable Margin for Advances on the average daily positive difference (if any) between the Minimum Funding Amount and the aggregate outstanding principal amount of the Advances during the period from and including each applicable period start date with respect to the Minimum Funding Amount to but excluding the last day of the Reinvestment Period. Accrued unfunded fees shall be payable in arrears on each Interest Payment Date, on the Maturity Date, on each Additional Payment Date and on the date on which the Financing Commitments terminate. All unfunded fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
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(g) Without limiting Section 4.03(c), the Company shall have the obligation from time to time to prepay outstanding Advances in whole or in part on any date with proceeds from sales of Portfolio Investments directed by the Administrative Agent pursuant to Section 1.04 and as set forth in Section 8.01(h). Prepayments shall be accompanied by accrued and unpaid interest.
SECTION 4.04. Market Value Cure Account.
(a) The Company shall cause all cash received by it in connection with a Market Value Cure to be deposited in the MV Cure Account or remitted to the Collateral Agent, and the Collateral Agent shall credit to the MV Cure Account such amounts received by it (and identified in writing as such) immediately upon receipt thereof. Prior to the Maturity Date, all cash amounts in the MV Cure Account shall be invested in overnight Eligible Investments at the written direction of the Administrative Agent (as directed by the Required Lenders). All amounts contributed to the Company by Parent in connection with a Market Value Cure shall be paid free and clear of any right of chargeback or other equitable claim.
(b) Amounts on deposit in the MV Cure Account may be withdrawn by the Collateral Agent (at the written direction of the Company (or, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, the Administrative Agent)) and remitted to the Company with prior notice to the Administrative Agent (or, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, to the Lenders for prepayment of Advances and reduction of Financing Commitment); provided that the Company may not direct any withdrawal from the MV Cure Account if the Borrowing Base Test is not satisfied (or would not be satisfied after such withdrawal).
(a) to pay (i) first, amounts due or payable to the Collateral Agent, the Collateral Administrator and the Intermediary hereunder (including fees, out-of-pocket expenses and indemnities) up to a maximum amount under this clause (i) of U.S.$100,000 on each Interest Payment Date, the Maturity Date and each Additional Payment Date (in the case of any Additional Payment Date or the Maturity Date, after giving effect to all payments of such amounts on any other Additional Payment Date or Interest Payment Date occurring in the same calendar quarter) and (ii) second, any other accrued and unpaid fees and out-of pocket expenses (other than the commitment fee and unfunded fees payable to the Lenders, but including Lender indemnities) due hereunder, up to a maximum amount under this clause (ii) of U.S.$100,000 on each Interest Payment Date, the Maturity Date and each Additional Payment Date (in the case of any Additional Payment Date or the Maturity Date, after giving effect to all payments of such amounts on any other Additional Payment Date or Interest Payment Date occurring in the same calendar quarter) (the maximum amounts specified above, collectively, the βExpense Cap Amountβ);
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(b) to pay interest due in respect of the Advances and any increased costs and commitment fees and unfunded fees payable to the Lenders (pro rata based on amounts due);
(c) to pay (i) on each Interest Payment Date, all prepayments of the Advances permitted or required under this Agreement (including any applicable premium) and (ii) on the Maturity Date (and, if applicable, any Additional Payment Date), principal of the Advances until the Advances are paid in full;
(d) prior to the end of the Reinvestment Period, at the direction of the Portfolio Manager, to fund the Unfunded Exposure Account up to the Unfunded Exposure Amounts;
(e) to pay all amounts set forth in clause (a) above not paid due to the limitation set forth therein;
(f) to make any Permitted Distributions or Permitted Tax Distributions (using Interest Proceeds) directed pursuant to this Agreement; and
(g) (i) on any Interest Payment Date, to deposit any remaining amounts in the Collection Account as Principal Proceeds and (ii) on the Maturity Date and any Additional Payment Date, any remaining amounts to the Company.
SECTION 4.07. Termination or Reduction of Financing Commitments.
(a) After the Non-Call Period (or any other date if JPMorgan Chase Bank, National Association ceases to act as Administrative Agent), the Company shall be entitled at its option, subject to the payment of the premium described in Section 4.03(c)(ii), and upon three (3) Business Daysβ prior written notice to the Administrative Agent (with a copy to the Collateral Agent and the Collateral Administrator) to either (i) terminate the Financing Commitments in whole upon payment in full of all Advances, all accrued and unpaid interest, all applicable premium and all other Secured Obligations (other than unmatured contingent indemnification and reimbursement obligations) or (ii) reduce in part the portion of the Financing Commitments that exceeds the sum of the outstanding Advances. In addition, the Financing Commitments shall be reduced by the amount of any prepayment of Advances pursuant to Section 4.03(c)(i)(C) during the Reinvestment Period that exceeds the Revolving Amount.
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(b) The Financing Commitments shall be automatically reduced on the date of any prepayment made in accordance with the definition of βMarket Value Cureβ in an amount equal to the amount of such prepayment.
(c) The Financing Commitments shall be irrevocably reduced by all amounts that are used to prepay or repay Advances following the occurrence of a Market Value Event or an Event of Default.
(d) All unused Financing Commitments as of the last day of the Reinvestment Period shall automatically be terminated.
(e) The Financing Commitments shall be irrevocably reduced by the amount of any repayment or prepayment of Advances following the last day of the Reinvestment Period.
ARTICLE
V
THE PORTFOLIO MANAGER
(a) The Portfolio Manager shall perform its obligations hereunder with reasonable care, using a degree of skill not less than that which the Portfolio Manager exercises with respect to assets of the nature of the Portfolio Investments that it manages for itself and others having similar investment objectives and restrictions; and
(b) The Portfolio Manager shall not (and shall not cause the Company to) take any action that it knows or reasonably should know would (1) violate the constituent documents of the Company, (2) violate any law, rule or regulation applicable to the Company, (3) require registration of the Company as an βinvestment companyβ under the Investment Company Act of 1940, or (4) in any material respect, cause the Company to violate the terms of this Agreement, any other Loan Document or any instruments relating to the Portfolio Investments.
The Portfolio Manager may employ third parties (including its Affiliates) to render advice (including investment advice) and assistance to the Company and to perform any of the Portfolio Managerβs duties hereunder, provided that the Portfolio Manager shall not be relieved of any of its duties or liabilities hereunder regardless of the performance of any services by third parties. For the avoidance of doubt, neither the Administrative Agent nor any Lender shall have the right to remove or replace the Portfolio Manager as investment adviser or portfolio manager hereunder.
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(b) The Portfolio Manager shall not have any liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Portfolio Investments or results from or relates to the performance of one or more Portfolio Investments or any decision by the Portfolio Manager to acquire or sell or refrain from acquiring or selling a Portfolio Investment or for special, punitive, indirect, consequential or incidental damages (including but not limited to lost profits).
(c) If the Portfolio Manager has made any indemnity payments to the Administrative Agent on behalf of an Indemnified Person pursuant to this Section 5.03 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Person will promptly repay such amounts collected to the Portfolio Manager, without interest.
This Section 5.03 shall survive the termination of this Agreement and the repayment of all amounts owing to the Secured Parties hereunder.
ARTICLE
VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
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(a) it is duly organized or incorporated, as the case may be, and validly existing under the laws of the jurisdiction of its organization or incorporation and has all requisite power and authority to execute, deliver and perform this Agreement and each other Loan Document to which it is or may become a party and to consummate the transactions herein and therein contemplated;
(b) the execution, delivery and performance of this Agreement and each such other Loan Document, and the consummation of the transactions contemplated herein and therein have been duly authorized by it and this Agreement and each other Loan Document to which it is or may become a party constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms (subject to (A) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditorsβ rights generally, (B) equitable limitations on the availability of specific remedies, regardless of whether such enforceability is considered in a proceeding in equity or at law and (C) implied covenant of good faith and fair dealing);
(c) the execution, delivery and performance of this Agreement and each other Loan Document to which it is or may become a party and the consummation of the transactions contemplated herein and therein do not conflict with the provisions of its governing instruments and, except where such violation would not reasonably be expected to have a Material Adverse Effect, will not violate in any material way any provisions of Applicable Law or regulation or any applicable order of any court or regulatory body and will not result in the material breach of, or constitute a default, or require any consent, under any material agreement, instrument or document to which it is a party or by which it or any of its property may be bound or affected;
(d) it is not subject to any Adverse Proceeding;
(e) it has obtained all consents and authorizations (including all required consents and authorizations of any Governmental Authority) that are necessary or advisable to be obtained by it in connection with the execution, delivery and performance of this Agreement and each other Loan Document to which it is or may become a party and each such consent and authorization is in full force and effect except where the failure to do so would not reasonably be expected to have a Material Adverse Effect;
(f) it is not required to register as an βinvestment companyβ as defined in the Investment Company Act of 1940, as amended;
(g) it has not issued any securities that are or are required to be registered under the Securities Act of 1933, as amended, and it is not a reporting company under the Securities Exchange Act of 1934, as amended;
(h) it has no Indebtedness other than (i) Indebtedness incurred under the terms of the Loan Documents, (ii) Indebtedness incurred pursuant to certain ordinary business expenses arising pursuant to the transactions contemplated by this Agreement and the other Loan Documents and (iii) if applicable, the obligation to make future payments under any Delayed Funding Term Loan or Revolving Loan;
(i) (x) it does not have underlying assets which constitute βplan assetsβ within the meaning of the Plan Asset Rules; and (y) neither it nor any ERISA Affiliate has within the last six years sponsored, maintained, contributed to, or been required to contribute to and does not have any liability with respect to any Plan;
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(j) as of the date of this Agreement it is, and after giving effect to any Advance it will be, Solvent and it is not entering into this Agreement or any other Loan Document or consummating any transaction contemplated hereby or thereby with any intent to hinder, delay or defraud any of its creditors;
(k) it is not in default under any other contract to which it is a party except where such default would not reasonably be expected to have a Material Adverse Effect;
(l) it has complied in all material respects with all Applicable Laws, judgments, agreements with governmental authorities, decrees and orders with respect to its business and properties and the Portfolio;
(m) it does not have any Subsidiaries or own any Investments in any Person other than the Portfolio Investments or Investments (i) constituting Eligible Investments (as measured at their time of acquisition), (ii) acquired by the Company with the approval of the Administrative Agent, or (iii) those the Company shall have acquired or received as a distribution in connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any issuer thereof;
(n) (x) it has disclosed to the Administrative Agent all agreements, instruments and corporate or other restrictions actually known to it to which it is subject, and all other matters actually known to it that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect and (y) no information (other than projections, forward-looking information, general economic data, industry information or information relating to third parties) heretofore furnished by or on behalf of the Company in writing to the Administrative Agent or any Lender in connection with this Agreement or any transaction contemplated hereby (after taking into account all updates, modifications and supplements to such information) contains (or, to the extent any such information was furnished by a third party, to the Companyβs actual knowledge contains), when taken as a whole, as of its delivery date, any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (or, if not prepared by or under the direction of the Company, does not omit to state such a fact to the Companyβs knowledge);
(o) all of the conditions to the acquisition of the Portfolio Investments specified in Section 1.03 have been satisfied or waived;
(p) the Company has timely filed all Tax returns required by Applicable Law to have been filed by it; all such Tax returns are true and correct in all material respects; and the Company has paid or withheld (as applicable) all Taxes owing or required to be withheld by it (if any) shown on such Tax returns, except any such Taxes which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside in accordance with GAAP on its books and records;
(q) the Company is and will be treated as a disregarded entity for U.S. federal income tax purposes;
(r) the Company is and will be wholly owned by the Parent, which is a U.S. Person;
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(s) prior to the date hereof, the Company has not engaged in any business operations or activities other than as an ownership entity for Portfolio Investments and similar Loan or debt obligations and activities incidental thereto;
(t) neither it nor any of its Affiliates is (i) the subject or target of Sanctions; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a βNon-Cooperative Jurisdictionβ by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a βForeign Shell Bankβ within the meaning of the PATRIOT Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the PATRIOT Act as warranting special measures due to money laundering concerns. It is in compliance with all applicable Sanctions and also in compliance with all applicable provisions of the PATRIOT Act;
(u) the Company has implemented and maintains in effect policies and procedures designed to ensure compliance by the Company, its agents and their respective directors, managers, officers and employees (as applicable) with Anti-Corruption Laws and applicable Sanctions, and the Company and its officers and, to its knowledge, its directors, members and agents are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (i) the Company or its officers or (ii) to the knowledge of the Company, any director, manager or agent of the Company that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person;
(v) the Loan Documents represent all of the material agreements between the Portfolio Manager, the Parent and the Seller, on the one hand, and the Company, on the other. The Company has good and marketable title to all Portfolio Investments and other Collateral free of any Liens (other than Permitted Liens and inchoate liens arising by operation of law);
(w) the Company is not relying on any advice (whether written or oral) of any Lender, Agent or any of their respective Affiliates;
(x) there are no judgments for Taxes with respect to the Company and no claim is being asserted with respect to the Taxes of the Company;
(y) upon the making of each Advance, the Collateral Agent, for the benefit of the Secured Parties, will have acquired a perfected, first priority and valid security interest (except, as to priority, for any Permitted Liens) in the Collateral acquired with the proceeds of such Advance, free and clear of any adverse claim (other than Permitted Liens) or restrictions on transferability to the extent (as to perfection and priority) that a security interest in said Collateral may be perfected under the applicable UCC;
(z) the Parent (i) is not required to register as an investment company under the Investment Company Act of 1940, as amended, and (ii) has elected to be treated a business development corporation for purposes of the Investment Company Act of 1940, as amended;
(aa) the Portfolio Manager is not required to register as an investment adviser under the Investment Advisers Act of 1940, as amended;
(bb) no ERISA Event has occurred; and
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(cc) all proceeds of the Advances will be used by the Company only in accordance with the provisions of this Agreement. No part of the proceeds of any Advance will be used by the Company to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock. Neither the making of any Advance nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve Board. No Advance is secured, directly or indirectly, by Margin Stock, and the Collateral does not include Margin Stock.
(a) shall at all times: (i) maintain at least one independent manager or director (who is in the business of serving as an independent manager or director); (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) to the extent it is required to have a board of managers, have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Company is treated as a βdisregarded entityβ for tax purposes and is not required to file any Tax returns under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Company has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; (ix) pay its own liabilities only out of its own funds; (x) maintain an armβs length relationship with the Parent and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) not acquire the obligations or any securities of its Affiliates; (xviii) cause the managers, officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company; and (xix) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Company, shall immediately become the member of the Company in accordance with its organizational documents.
(b) shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a), including, other than with respect to any warrants received in connection with a Portfolio Investment, controlling the decisions or actions respecting the daily business or affairs of any other Person except as otherwise permitted hereunder (which, for the avoidance of doubt, shall not prohibit the Company from taking, or refraining to take, any action under or with respect to a Portfolio Investment); (ii) fail to be Solvent; (iii) release, sell, transfer, convey or assign any Portfolio Investment unless in accordance with the Loan Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Company, enter into any transaction with an Affiliate of the Company except on commercially reasonable terms similar to those available to unaffiliated parties in an armβs-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral and the related assets and incidental personal property necessary for the ownership or operation of these assets.
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(c) shall take all actions consistent with and shall not take any action contrary to the βFacts and Assumptionsβ sections in the opinions of Dechert LLP, dated the date hereof, relating to certain true sale and non-consolidation matters;
(d) shall not create, incur, assume or suffer to exist any Indebtedness other than (i) Indebtedness incurred under the terms of the Loan Documents, (ii) Indebtedness incurred pursuant to certain ordinary business expenses arising pursuant to the transactions contemplated by this Agreement and the other Loan Documents and (iii) if applicable, the obligation to make future payments under any Delayed Funding Term Loan or Revolving Loan;
(e) shall maintain in effect and enforce policies and procedures designed to ensure compliance by the Company and its directors, managers, officers and agents with Anti-Corruption Laws and applicable Sanctions;
(f) shall not amend (1) any of its constituent documents or (2) any document to which it is a party in any manner that would reasonably be expected to adversely affect the Lenders in any material respect, without, in each case, the prior written consent of the Administrative Agent;
(g) shall not (A) permit the validity or effectiveness of this Agreement or any grant hereunder to be impaired, or permit the Lien of this Agreement to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to this Agreement, any other Loan Document or the Advances, except as may be expressly permitted hereby or (B) take any action that would cause the Lien of this Agreement not to constitute a valid perfected security interest in the Collateral that is of first priority, free of any adverse claim or the legal equivalent thereof, as applicable, except for Permitted Liens and inchoate liens arising by operation of law;
(h) shall not, without the prior consent of the Administrative Agent (acting at the direction of the Required Lenders), which consent may be withheld in the sole and absolute discretion of the Required Lenders, enter into any hedge agreement;
(i) shall not change its name, identity or corporate structure in any manner that would make any financing statement or continuation statement filed by the Company (or by the Collateral Agent on behalf of the Company) in accordance with subsection (a) above materially misleading or change its jurisdiction of organization, unless the Company shall have given the Administrative Agent and the Collateral Agent at least 30 days prior written notice thereof, and shall promptly file, or authorize the filing of, appropriate amendments to all previously filed financing statements and continuation statements (and shall provide a copy of such amendments to the Collateral Agent and Administrative Agent together with written confirmation to the effect that all appropriate amendments or other documents in respect of previously filed statements have been filed);
(j) shall do or cause to be done all things reasonably necessary to (i) preserve and keep in full force and effect its existence as a limited liability company and take all reasonable action to maintain its rights, franchises, licenses and permits material to its business in the jurisdiction of its formation and (ii) qualify and remain qualified as a limited liability company in good standing in each jurisdiction in which such qualification is necessary to protect the validity and enforceability of the Loan Documents or any of the Collateral;
(k) shall comply with all Applicable Law (whether statutory, regulatory or otherwise), except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect;
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(l) shall not merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, in each case, without the prior written consent of the Administrative Agent;
(m) except for Investments permitted by Section 6.02(u)(C) and without the prior written consent of the Administrative Agent, shall not form, or cause to be formed, any Subsidiaries; or make or suffer to exist any Loans or advances to, or extend any credit to, or make any investments (by way of transfer of property, contributions to capital, purchase of stock or securities or evidences of indebtedness, acquisition of the business or assets, or otherwise) in, any Affiliate or any other Person except investments as otherwise permitted herein and pursuant to the other Loan Documents;
(n) shall ensure that (i) its affairs are conducted so that its underlying assets do not constitute βplan assetsβ within the meaning of the Plan Asset Rules, and (ii) neither it nor any ERISA Affiliate sponsors, maintains, contributes to or is required to contribute to or has any liability with respect to any Plan;
(o) except for the security interest granted hereunder and as otherwise permitted hereunder, shall not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on the Collateral or any interest therein (other than Permitted Liens and inchoate liens arising by operation of law), and the Company shall defend the right, title, and interest of the Collateral Agent (for the benefit of the Secured Parties) and the Lenders in and to the Collateral against all claims of third parties claiming through or under the Company (other than Permitted Liens and inchoate liens arising by operation of law);
(p) shall promptly furnish to the Administrative Agent, and the Administrative Agent shall furnish to the Lenders, copies of the following financial statements, reports and information: (i) as soon as available, but in any event within 120 days after the end of each fiscal year of the Parent, a copy of the audited consolidated and consolidating balance sheet of the Parent and its consolidated Subsidiaries as at the end of such year, the related consolidated and consolidating statements of income for such year and the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year; provided, that the financial statements required to be delivered pursuant to this clause (i) which are made available via XXXXX, or any successor system of the Securities Exchange Commission, in the Parentβs annual report on Form 10-K, shall be deemed delivered to the Administrative Agent on the date such documents are made so available; (ii) as soon as available and in any event within 45 days after the end of each fiscal quarter of each fiscal year (other than the last fiscal quarter of each fiscal year), an unaudited consolidated and consolidating balance sheet of the Parent and its consolidated Subsidiaries as of the end of such fiscal quarter and including the prior comparable period (if any), and the unaudited consolidated and consolidating statements of income of the Parent and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, and the unaudited consolidated statements of cash flows of the Parent and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, that the financial statements required to be delivered pursuant to this clause (ii) which are made available via XXXXX, or any successor system of the Securities Exchange Commission, in Parentβs quarterly report on Form 10-Q, shall be deemed delivered to the Administrative Agent on the date such documents are made so available; and (iii) from time to time, such other information or documents (financial or otherwise) as the Administrative Agent or the Required Lenders may reasonably request so long as such information or documents are within the possession of the Company or may be obtained with neither undue burden nor expense;
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(q) shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all Taxes levied or imposed upon the Company or upon the income, profits or property of the Company; provided that the Company shall not be required to pay or discharge or cause to be paid or discharged any such Tax (i) the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which disputed amounts adequate reserves in accordance with GAAP have been made or (ii) the failure of which to pay or discharge could not reasonably be expected to have a Material Adverse Effect;
(r) shall permit representatives of the Administrative Agent at any time and from time to time as the Administrative Agent shall reasonably request, (A) to inspect and make copies of and abstracts from its records relating to the Portfolio Investments and (B) to visit its properties in connection with the collection, processing or managing of the Portfolio Investments for the purpose of examining such records, and to discuss matters relating to the Portfolio Investments or such Personβs performance under this Agreement and the other Loan Documents with any officer or employee or auditor (if any) of such Person having knowledge of such matters. The Company agrees to render to the Administrative Agent such clerical and other assistance as may be reasonably requested with regard to the foregoing; provided that such assistance shall not interfere in any material respect with the Companyβs or the Portfolio Managerβs business and operations. So long as no Event of Default has occurred and is continuing, such visits and inspections shall occur only (i) upon five (5) Business Daysβ prior written notice, (ii) during normal business hours and (iii) no more than once in any calendar year. Following the occurrence and during the continuance of an Event of Default, there shall be no limit on the timing or number of such inspections and only two (2) Business Daysβ prior notice will be required before any inspection;
(s) shall not use any part of the proceeds of any Advance, whether directly or indirectly, for any purpose that entails a violation of any of the regulations of the Board of Governors of the Federal Reserve System of the United States of America, including Regulations T, U and X;
(t) shall not make any Restricted Payments without the prior written consent of the Administrative Agent; provided that the Company may make Permitted Distributions and Permitted Tax Distributions subject to the other requirements of this Agreement;
(u) shall not make or hold any Investments, except the Portfolio Investments or Investments (A) constituting Eligible Investments (measured at the time of acquisition), (B) that have been consented to by the Administrative Agent or (C) those the Company shall have acquired or received as a distribution in connection with a workout, bankruptcy, foreclosure, restructuring or similar process or proceeding involving a Portfolio Investment or any issuer thereof;
(v) shall not request any Advance, and the Company shall not directly, or to the knowledge of the Company, indirectly, use, and shall procure that its agents shall not directly, or to the knowledge of the Company, indirectly, use, the proceeds of any Advance (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto;
(w) other than pursuant to the Sale Agreement, shall not transfer to any of its Affiliates any Portfolio Investment purchased from any of its Affiliates (other than sales to Affiliates conducted on terms and conditions consistent with those of an armβs length transaction and at fair market value);
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(x) shall (i) if the Company or the Portfolio Manager receives materials or information indicating that an event of default (however defined in the applicable underlying instruments) or an event that, with notice or lapse of time or both, will become an event of default has occurred with respect to any Portfolio Investment, promptly upon receipt thereof by the Company or the Portfolio Manager notify the Administrative Agent thereof via e-mail or by telephone, (ii) if the Company or the Portfolio Manager receives any management discussion and analysis with respect to a Specified Matter, not more than five (5) Business Days following receipt thereof by the Company or the Portfolio Manager, post on a password protected website maintained by the Portfolio Manager to which the Administrative Agent will have access and (iii) with respect to all other matters, not later than 15 Business Days following receipt of such information or materials by the Company or the Portfolio Manager, post on a password protected website maintained by the Portfolio Manager to which the Administrative Agent will have access, with respect to each obligor of a Portfolio Investment, without duplication of any other reporting requirements set forth in this Agreement or any other Loan Document, any management discussion and analysis provided by such obligor and any financial reporting packages with respect to such obligor and with respect to each Portfolio Investment for such obligor (including any attached or included information, statements and calculations); provided, that, to the extent such information is made available via XXXXX (or any successor system of the Securities and Exchange Commission), such information shall be deemed delivered to the Administrative Agent on the date such documents are made so available. The Company shall cause the Portfolio Manager to provide such other information as the Administrative Agent may reasonably or, if such institution has no short-term rating, request with respect to any Portfolio Investment or obligor (to the extent reasonably available to the Portfolio Manager);
(y) shall not elect to be classified as other than a disregarded entity or partnership for U.S. federal income tax purposes, nor shall the Company take any other action or actions that would cause it to be classified, taxed or treated as a corporation or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes (including transferring interests in the Company on or through an established securities market or secondary market (or the substantial equivalent thereof), within the meaning of Section 7704(b) of the Code (and Treasury regulations thereunder);
(z) shall only have partners or owners that are treated as U.S. Persons or that are disregarded entities owned by a U.S. Person and shall not recognize the transfer of any interest in the Company that constitutes equity for U.S. federal income tax purposes to a Person that is not a U.S. Person;
(aa) shall from time to time execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, and shall take such other action as may be reasonably necessary to secure the rights and remedies of the Secured Parties hereunder and to grant more effectively all or any portion of the Collateral, maintain or preserve the security interest (and the priority thereof) of this Agreement or to carry out more effectively the purposes hereof, perfect, publish notice of or protect the validity of any grant made or to be made by this Agreement, preserve and defend title to the Collateral and the rights therein of the Collateral Agent and the Secured Parties in the Collateral and the Collateral Agent against the claims of all Persons and parties, pay any and all Taxes levied or assessed upon all or any part of the Collateral and use its commercially reasonable efforts to minimize Taxes and any other costs arising in connection with its activities or give, execute, deliver, file and/or record any financing statement, notice, instrument, document, agreement or other papers that may be necessary or desirable to create, preserve, perfect or validate the security interest granted pursuant to this Agreement or to enable the Collateral Agent to exercise and enforce its rights hereunder with respect to such pledge and security interest, and hereby authorizes the Collateral Agent to file a UCC financing statement listing βall assets of the debtorβ (or substantially similar language) in the collateral description of such financing statement;
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(bb) shall ensure that all Portfolio Investments denominated in a Permitted Non-USD Currency and all proceeds thereof are at all times deposited in or credited to a Permitted Non-USD Currency Account except to the extent that any such proceeds are transferred to an Account in accordance with this Agreement or any such Portfolio Investment is sold in accordance with this Agreement;
(cc) shall not hire any employees;
(dd) shall not maintain any bank accounts or securities accounts other than the Accounts;
(ee) except as otherwise expressly permitted herein, shall not cancel or terminate any of the underlying instruments in respect of a Portfolio Investment to which it is party or beneficiary (in any capacity), or consent to or accept any cancellation or termination of any of such agreements unless (in each case) the Administrative Agent shall have consented thereto in writing in its sole discretion;
(ff) shall not make or incur any capital expenditures except as reasonably required to perform its functions in accordance with this Agreement;
(gg) shall not act on behalf of, a country, territory, entity or individual that, at the time of such act, is the subject or target of Sanctions, and none of the Company, the Portfolio Manager or any of their respective Affiliates, owners, directors or officers is a natural person or entity with whom dealings are prohibited under Sanctions for a natural person or entity required to comply with such Sanctions. The Company does not own and will not acquire, and the Portfolio Manager will not cause the Company to own or acquire, any security issued by, or interest in, any country, territory, or entity whose direct ownership would be or is prohibited under Sanctions for a natural person or entity required to comply with Sanctions;
(hh) shall give notice to the Administrative Agent promptly in writing upon the occurrence of any of the following:
(1) any Adverse Proceeding;
(2) any Default or Event of Default; and
(3) any adverse claim asserted against any of the Portfolio Investments, the Accounts or any other Collateral; and
(ii) concurrently with any delivery of financial statements under Section 6.02(p)(i) and (ii), shall furnish to the Administrative Agent a certificate of a Financial Officer certifying as to whether the Company has knowledge that a Default has occurred or is occurring during the applicable period and, if a Default has occurred or is occurring, specifying the details thereof and any action taken or proposed to be taken with respect thereto.
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ARTICLE
VII
EVENTS OF DEFAULT
If any of the following events (βEvents of Defaultβ) shall occur:
(a) the Company shall fail to pay (i) any principal amount owing by it in respect of the Secured Obligations when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise or (ii) any other amount owing by it in respect of the Secured Obligations (whether for interest, fees or other amounts owing by it) within two (2) Business Days of the earlier of (x) the Company becoming aware of such failure or (y) receipt of written notice by the Company of such failure;
(b) any representation or warranty made or deemed made by or on behalf of the Company, the Portfolio Manager or the Seller (collectively, the βCredit Risk Partiesβ) herein or in any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, or other document (other than projections, forward-looking information, general economic data, industry information or information relating to third parties) furnished pursuant hereto or in connection herewith or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made (it being understood that the failure of a Portfolio Investment to satisfy the Eligibility Criteria after the date of its purchase shall not constitute a failure) and if such failure is capable of being remedied, such failure shall continue for a period of 30 days following the earlier of (i) receipt by a senior officer of such Credit Risk Party of written notice of such inaccuracy from the Administrative Agent and (ii) a senior officer of such Credit Risk Party becoming aware of such inaccuracy (or, if such failure could not reasonably be expected to be cured within 30 days, such Credit Risk Party commences and diligently pursues such cure and such failure is cured within 45 days);
(c) (A) the Company shall fail to observe or perform any covenant, condition or agreement contained in Section 6.02(a)(i) through (vii), (xi), (xiv) or (xix), (b)(i) through (iv), (d), (f), (h), (i), (l), (m), (o), (t), (v), (w) or (cc) or (B) any Credit Risk Party shall fail to observe or perform any other covenant, condition or agreement contained herein (it being understood that the failure of a Portfolio Investment to satisfy the Eligibility Criteria after the date of its purchase shall not constitute such a failure) or in any other Loan Document and, in the case of this clause (B), if such failure is capable of being remedied, such failure shall continue for a period of 30 days following the earlier of (i) receipt by a senior officer of such Credit Risk Party of written notice of such failure from the Administrative Agent and (ii) a senior officer of such Credit Risk Party becoming aware of such failure (or, if such failure could not reasonably be expected to be cured within 30 days, such Credit Risk Party commences and diligently pursues such cure and such failure is cured within 45 days);
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(d) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Credit Risk Party or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Risk Party or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(e) any Credit Risk Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (d) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Credit Risk Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(f) any Credit Risk Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(g) the passing of a resolution by the equity holders of the Company in respect of the winding up on a voluntary basis of the Company;
(h) any final judgments or orders (not subject to appeal or otherwise non-appealable) by one or more courts of competent jurisdiction for the payment of money in an aggregate amount in excess of U.S.$1,000,000 (after giving effect to insurance, if any, available with respect thereto) shall be rendered against the Company, and the same shall remain unsatisfied, unvacated, unbonded or unstayed for a period of sixty (60) days after the date on which the right to appeal has expired;
(i) an ERISA Event occurs; provided that, in the case of an ERISA Event described in clause (2) of the definition of βERISA Eventβ, such ERISA Event would reasonably be expected to have a Material Adverse Effect;
(j) a Change of Control occurs without the prior written consent of the Administrative Agent;
(k) the Company or the pool of Collateral shall become required to register as an βinvestment companyβ within the meaning of the Investment Company Act of 1940, as amended;
(l) the Portfolio Manager (i) resigns as Portfolio Manager under this Agreement, (ii) assigns any of its obligations or duties as Portfolio Manager in contravention of the terms of this Agreement or (iii) otherwise ceases to act as Portfolio Manager in accordance with the terms of this Agreement;
(m) the Net Asset Value is less than the product of (1) the Net Advances multiplied by (2) 117.64% and such deficit is not remedied within two (2) Business Days of delivery of notice thereof by the Administrative Agent;
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(n) (i) failure of the Company to fund the Unfunded Exposure Account when required in accordance with Section 2.03(e) other than in the case that any Lender fails to make the Advance required in accordance with Section 2.03(e) or (ii) failure of the Company to satisfy its obligations in respect of unfunded obligations with respect to any Delayed Funding Term Loan or Revolving Loan other than if the Company provides the Administrative Agent with written notice in reasonable detail stating that it has elected not to fund any applicable amount due to a good faith contractual dispute with respect to the related Portfolio Investment or a determination by the Company that an advance is not required under its underlying instruments; provided that the failure of the Company to undertake any action set forth in this clause (n) is not remedied within two (2) Business Days;
(o) KKR Credit Advisors (US) LLC (i) resigns as sub-adviser of the Parent under the sub-advisory agreement between the Parent and KKR Credit Advisors (US) LLC as in effect on the Effective Date, (ii) assigns any of its obligations or duties as sub-adviser in contravention of the terms of the sub-advisory agreement between the Parent and KKR Credit Advisors (US) LLC as in effect on the Effective Date or (iii) otherwise ceases to act as sub-adviser in accordance with the terms of the sub-advisory agreement between the Parent and KKR Credit Advisors (US) LLC as in effect on the Effective Date, in each case without the prior written consent of the Administrative Agent; or
(p) an Event of Default (as defined in the Parent Credit Agreement) under clause (a) or clause (b) of such term under the Parent Credit Agreement (including all applicable grace periods) which has been declared by the administrative agent or a lender under the Parent Credit Agreement;
then, and in every such event (other than an event with respect to the Company described in clause (d) or (e) of this Article), and at any time thereafter in each case during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Company, take either or both of the following actions, at the same or different times: (i) terminate the Financing Commitments, and thereupon the Financing Commitments shall terminate immediately, and (ii) declare all of the Secured Obligations then outstanding to be due and payable in whole (or in part, in which case any Secured Obligations not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the Secured Obligations so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Company accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company; and in case of any event with respect to the Company described in clause (d) or (e) of this Article, the Financing Commitments shall automatically terminate and all Secured Obligations then outstanding, together with accrued interest thereon and all fees and other obligations of the Company accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company.
ARTICLE
VIII
ACCOUNTS; COLLATERAL SECURITY
SECTION 8.01. The Accounts; Agreement as to Control.
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(i) the Securities Accounts are and shall be treated as βsecurities accountsβ (within the meaning of Section 8-501(a) of the UCC) and the Collateral Agent is the βentitlement holderβ (within the meaning of Section 8-102(a)(7) of the UCC) of such Accounts;
(ii) the Deposit Accounts are βdeposit accountsβ (within the meaning of Section 9-102(a)(29) of the UCC) and the Collateral Agent is the βcustomerβ (within the meaning of Section 4-104(1)(e) of the UCC) of such Accounts;
(iii) all Collateral in the form of cash held by the Intermediary shall be held in a Deposit Account, which may be a subaccount of another Account;
(iv) the Intermediary shall not change the name or account number of any of the Accounts without the prior written consent of the Collateral Agent, and, so long as no Event of Default has occurred and is continuing under this Agreement, without the prior written consent of the Company;
(v) each Account shall at all times be held and maintained through an office of the Securities Intermediary or the Bank, as applicable, located in the State of New York or the Commonwealth of Massachusetts; and
(vi) all Collateral delivered to the Intermediary pursuant to this Agreement will be promptly credited to the appropriate Account, subject to the terms of this Agreement.
(c) Except as otherwise expressly provided herein, the Collateral Agent will be exclusively entitled to exercise the rights that comprise each financial asset credited to each Account and, without limitation, each Permitted Non-USD Currency Account. The parties hereto agree that the Intermediary shall act only on entitlement orders or other instructions with respect to the Accounts and the Permitted Non-USD Currency Accounts originated by the Collateral Agent and no other Person (and without further consent by any other Person); and the Collateral Agent, for the benefit of the Secured Parties, shall have exclusive control and the sole right of withdrawal over each Account and each Permitted Non-USD Currency Account. The only permitted withdrawals from the Accounts and the Permitted Non-USD Currency Accounts shall be in accordance with the provisions of this Agreement.
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(i) Unfunded Exposure Account.
(i) Amounts may be deposited into the Unfunded Exposure Account from time to time in accordance with Section 4.05. Amounts shall also be deposited into the Unfunded Exposure Account as set forth in Section 2.03(e).
(ii) While no Event of Default has occurred and is continuing and no Market Value Event has occurred and subject to satisfaction of the Borrowing Base Test (after giving effect to such release), the Portfolio Manager may direct, by means of an instruction in writing to the Intermediary (with a copy to the Collateral Administrator), the release of funds on deposit in the Unfunded Exposure Account (i) for the purpose of funding the Companyβs unfunded commitments with respect to Delayed Funding Term Loans and Revolving Loans, for deposit into the Collection Account and (ii) so long as no Unfunded Exposure Shortfall exists or would exist after giving effect to the withdrawal. Following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, at the written direction of the Administrative Agent (at the direction of the Required Lenders) (with a copy to the Collateral Administrator), the Intermediary shall transfer all amounts in the Unfunded Exposure Account to the Collection Account to be applied pursuant to Section 4.05. Upon the direction of the Company by means of an instruction in writing to the Intermediary (with a copy to the Collateral Administrator, the Collateral Agent and the Administrative Agent), any amounts on deposit in the Unfunded Exposure Account in excess of outstanding funding obligations of the Company shall be released to the Collection Account to prepay the outstanding Advances.
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SECTION 8.02. Collateral Security; Pledge; Delivery.
(i) Exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the UCC (whether or not the UCC applies to the affected Collateral) and also may, without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agentβs or its designeeβs offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Collateral Agent or a designee of the Collateral Agent (acting at the direction of the Required Lenders) may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least ten (10) calendar daysβ prior notice to the Company of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of the Collateral regardless of notice of sale having been given. The Collateral Agent or its designee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned;
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(ii) Transfer all or any part of the Collateral into the name of the Collateral Agent or a nominee thereof;
(iii) Enforce collection of any of the Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto;
(iv) Endorse any checks, drafts, or other writings in the Companyβs name to allow collection of the Collateral;
(v) Take control of any proceeds of the Collateral;
(vi) Execute (in the name, place and stead of any of the Company) endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to all or any of the Collateral; and/or
(vii) Perform such other acts as may be reasonably required to do to protect the Collateral Agentβs rights and interest hereunder.
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Each financial institution serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender (if applicable) as any other Lender and may exercise the same as though it were not an Agent, and such financial institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company as if it were not an Agent hereunder.
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No Agent or the Collateral Administrator shall have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except that the foregoing shall not limit any duty expressly set forth in this Agreement to include such rights and powers expressly contemplated hereby that such Agent is required to exercise as directed in writing by (i) in the case of the Collateral Agent (A) in respect of the exercise of remedies under Section 8.02(c), the Required Lenders, or (B) in all other cases, the Administrative Agent or (ii) in the case of any Agent, the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the circumstances as provided herein), and (c) except as expressly set forth herein, no Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company that is communicated to or obtained by the financial institution serving in the capacity of such Agent (except insofar as provided to it as Agent hereunder) or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request or direction of the Administrative Agent (in the case of the Collateral Administrator and the Collateral Agent only) or the Required Lenders (or such other number or percentage of Lenders that shall be permitted herein to direct such action or forbearance), in each case in the absence of its own gross negligence, bad faith, fraud or willful misconduct. None of the Collateral Agent, the Collateral Administrator or the Intermediary shall be deemed to have knowledge of any Default, Event of Default, Market Value Event or failure of the Borrowing Base Test unless and until a Responsible Officer has received written notice thereof from the Company, a Lender or the Administrative Agent. None of the Collateral Agent, the Collateral Administrator, the Intermediary or the Administrative Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness, genuineness, value or sufficiency of this Agreement, any other agreement, instrument or document or the Collateral, or (v) the satisfaction of any condition set forth herein, other than to confirm receipt of items expressly required to be delivered to such Agent. None of the Collateral Agent, the Collateral Administrator, the Intermediary or the Administrative Agent shall be required to risk or expend its own funds in connection with the performance of its obligations hereunder if it reasonably believes it will not receive reimbursement therefor hereunder.
Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, direction, opinion, document or other writing reasonably believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts in the absence of its own gross negligence, bad faith, fraud or willful misconduct.
In the event the Collateral Agent or the Collateral Administrator shall receive conflicting instruction from the Administrative Agent and the Required Lenders, the instruction of the Required Lenders shall govern. Neither the Collateral Administrator nor the Collateral Agent shall have any duties or obligations under or in respect of any other agreement (including any agreement that may be referenced herein) to which it is not a party. The grant of any permissive right or power to the Collateral Agent hereunder shall not be construed to impose a duty to act.
It is expressly acknowledged and agreed that neither the Collateral Administrator nor the Collateral Agent shall be responsible for, and shall not be under any duty to monitor or determine, compliance with the Eligibility Criteria or the Concentration Limitations in any instance, to determine if the conditions of βDeliverβ have been satisfied or otherwise to monitor or determine compliance by any other Person with the requirements of this Agreement.
Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. No Agent shall be responsible for any misconduct or negligence on the part of a non-Affiliated sub-agent or attorney appointed by such Agent with due care. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Affiliates and the respective directors, officers, employees, agents and advisors of such Person and its Affiliates (the βRelated Partiesβ) for such Agent. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Collateral Agent, as the case may be.
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Subject to the appointment and acceptance of a successor as provided in this paragraph, each of the Collateral Administrator, the Collateral Agent, the Intermediary and the Administrative Agent may resign at any time upon 30 daysβ notice to each other agent, the Lenders, the Portfolio Manager and the Company. Upon any such resignation, the Required Lenders shall have the right (with, so long as no Event of Default has occurred and is continuing, the consent of the Company and the Portfolio Manager) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Administrator, Collateral Agent, Intermediary or Administrative Agent, as applicable, gives notice of its resignation, then the Administrative Agent may, on behalf of the Lenders, appoint a successor which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution. If no successor shall have been so appointed by the Administrative Agent and shall have accepted such appointment within sixty (60) days after the retiring agent gives notice of its resignation, such agent may petition a court of competent jurisdiction for the appointment of a successor. Upon the acceptance of its appointment as Collateral Administrator, Intermediary, Administrative Agent or Collateral Agent, as the case may be, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring agent, and the retiring agent shall be discharged from its duties and obligations hereunder. After the retiring agentβs resignation hereunder, the provisions of this Article and Sections 5.03 and 10.04 shall continue in effect for the benefit of such retiring agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Administrator, Intermediary, Administrative Agent or Collateral Agent, as the case may be.
Subject to the appointment and acceptance of a successor as provided in this paragraph, each of the Collateral Administrator, the Collateral Agent and the Intermediary may be removed at any time with 30 daysβ notice by the Company (with the written consent of the Administrative Agent), with notice to the Collateral Administrator, the Collateral Agent, the Intermediary, the Lenders and the Portfolio Manager. Upon any such removal, the Company shall have the right (with the written consent of the Administrative Agent) to appoint a successor to the Collateral Agent, the Collateral Administrator and/or the Intermediary, as applicable. If no successor to any such Person shall have been so appointed by the Company and shall have accepted such appointment within thirty (30) days after such notice of removal, then the Administrative Agent may appoint a successor which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution. Upon the acceptance of its appointment as Collateral Administrator, Intermediary or Collateral Agent, as the case may be, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the removed agent, and the removed agent shall be discharged from its duties and obligations hereunder. After the removed agentβs removal hereunder, the provisions of this Article and Sections 5.03 and 10.04 shall continue in effect for the benefit of such removed agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Administrator, Intermediary or Collateral Agent, as the case may be.
Upon the request of the Company or the Administrative Agent or the successor agent, such retiring or removed agent shall, upon payment of its charges then unpaid, execute and deliver an instrument transferring to such successor agent all the rights, powers and trusts of the retiring or removed agent, and shall duly assign, transfer and deliver to such successor agent all property and money held by such retiring or removed agent hereunder. Upon request of any such successor agent, the Company and the Administrative Agent shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor agent all such rights, powers and trusts.
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Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
Anything in this Agreement notwithstanding, in no event shall any Agent, the Collateral Administrator or the Intermediary be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if such Agent, the Collateral Administrator or the Intermediary, as the case may be, has been advised of such loss or damage and regardless of the form of action.
Each Agent and the Collateral Administrator shall not be liable for any error of judgment made in good faith by an officer or officers of such Agent or the Collateral Administrator, unless it shall be conclusively determined by a court of competent jurisdiction that such Agent or the Collateral Administrator was grossly negligent in ascertaining the pertinent facts.
Each Agent and the Collateral Administrator shall not be responsible for the accuracy or content of any certificate, statement, direction or opinion furnished to it in connection with this Agreement.
Each Agent and the Collateral Administrator shall not be bound to make any investigation into the facts stated in any resolution, certificate, statement, instrument, opinion, report, consent, order, approval, bond or other document or have any responsibility for filing or recording any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder.
No Agent shall be responsible for delays or failures in performance resulting from acts beyond its control. Such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war. In connection with any payment, the Collateral Agent and the Collateral Administrator are entitled to rely conclusively on any instructions provided to them by the Administrative Agent.
The rights, protections and immunities given to the Agents in this Section 9.01 shall likewise be available and applicable to the Intermediary and the Collateral Administrator.
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If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent shall request written instructions from the Administrative Agent as to the course of action desired by it. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder.
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Notwithstanding any other provision of this Agreement, no recourse under any obligation, covenant or agreement of the Company or the Portfolio Manager contained in this Agreement shall be had against any incorporator, stockholder, partner, officer, director, member, manager, employee or agent of the Company, the Portfolio Manager or any of their respective Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is solely a corporate obligation of the Company and (with respect to the express obligations of the Portfolio Manager hereunder) the Portfolio Manager and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of the Company, the Portfolio Manager or any of their respective Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or agreements of the Company or the Portfolio Manager contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by the Company or the Portfolio Manager of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement.
SECTION 10.04. Expenses; Indemnity; Damage Waiver; Right of Setoff.
(a) The Company shall pay (1) all fees and reasonable and documented out-of-pocket expenses incurred by the Agents, the Collateral Administrator, the Intermediary and their Related Parties, including the fees, charges and disbursements of outside counsel for each Agent and the Collateral Administrator, and such other local counsel as required for the Agents and the Collateral Administrator, collectively, in connection with the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (2) all reasonable and documented out-of-pocket expenses incurred by the Agents, the Collateral Administrator and the Lenders, including the fees, charges and disbursements of outside counsel for each Agent, the Collateral Administrator and such other local counsel as required for all of them, in connection herewith, including the enforcement or protection of their rights in connection with this Agreement, including their rights under this Section, or in connection with the Advances provided by them hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Advances.
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(b) The Company shall indemnify the Agents, the Collateral Administrator, the Intermediary, the Lenders and their Related Parties (each such Person being called an βIndemniteeβ), against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable and documented out-of-pocket fees, charges and disbursements of outside counsel for each Indemnitee and such other local counsel as required for any Indemnitees, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (1) the execution or delivery of this Agreement or any agreement or instrument contemplated thereby, the performance by the parties thereto of their respective obligations (including, without limitation, any breach of any representation or warranty made by the Company or the Portfolio Manager hereunder (for the avoidance of doubt, after giving effect to any limitation included in any such representation or warranty relating to materiality or causing a Material Adverse Effect)) or the exercise of the parties thereto of their respective rights or the consummation of the transactions contemplated hereby, (2) any Advance or the use of the proceeds therefrom, or (3) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto or is pursuing or defending any such action; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (i) the bad faith, gross negligence, fraud, reckless disregard or willful misconduct of such Indemnitee, (ii) a claim brought against such Indemnitee for breach of such Indemniteeβs obligations under this Agreement or the other Loan Documents, (iii) the performance of the Portfolio Investments or (iv) a claim arising as a result of a dispute between Indemnitees (other than (x) any dispute involving claims against the Administrative Agent or the Lenders, in each case in their respective capacities as such, and (y) claims arising out of any act or omission by the Company or its Affiliates). This Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c) To the extent permitted by Applicable Law, neither the Company nor any Indemnitee shall assert, and each hereby waives, any claim against the Company or any Indemnitee, as applicable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement, instrument or transaction contemplated hereby, any Advance or the use of the proceeds thereof.
(d) If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Company against any of and all the obligations of the Company now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this clause (d) are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
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SECTION 10.06. Successors; Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Portfolio Manager, the Administrative Agent and each Lender (and any attempted assignment or transfer by the Company without such consent shall be null and void) and the Portfolio Manager may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent. Except as expressly set forth herein, nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Subject to the conditions set forth below, any Lender may assign to any other Person, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Financing Commitment and the Advances at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of the Administrative Agent and the Company; provided that the consent of the Company shall not be required for an assignment to any bank, Permitted Insurance Company or broker-dealer except that the consent of the Company shall be required for an assignment of any or all of the Revolving Amount to a bank or broker-dealer that is not a Permitted Revolver Assignee; provided, further, that no consent of the Administrative Agent (in the case of the initial Lender only) or the Company shall be required for an assignment of any Financing Commitment to an assignee that is a Lender (or any Affiliate thereof) with a Financing Commitment immediately prior to giving effect to such assignment; provided, further, that, following the occurrence and during the continuance of an Event of Default or following the occurrence of a Market Value Event, a Lender may assign its rights and obligations under this Agreement (including all or a portion of its Financing Commitment and the Advances at the time owing to it) to any person without the consent of the Company or (in the case of the initial Lender) the Administrative Agent.
Assignments shall be subject to the following additional conditions: (A) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenderβs rights and obligations under this Agreement; and (B) the parties to each assignment shall execute and deliver to the Administrative Agent an assignment and assumption agreement in form and substance acceptable to the Administrative Agent.
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Subject to acceptance and recording thereof below, from and after the effective date specified in each assignment and assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignment and assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignment and assumption, be released from its obligations under this Agreement (and, in the case of an assignment and assumption covering all of the assigning Lenderβs rights and obligations under this Agreement, such Lender shall cease to be a party hereto as a Lender but shall continue to be entitled to the benefits of Sections 5.03 and 10.04).
The Administrative Agent, acting for this purpose as an agent of the Company, shall maintain at one of its offices a copy of each assignment and assumption delivered to it and the Register. The entries in the Register shall be conclusive absent manifest error, and the parties hereto shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company, any Lender and the Portfolio Manager, at any reasonable time and from time to time upon reasonable prior notice. Upon its receipt of a duly completed assignment and assumption executed by an assigning Lender and an assignee, the Administrative Agent shall accept such assignment and assumption and record the information contained therein in the Register.
(c) Any Lender may sell participations to one or more banks or other entities (a βLender Participantβ) in all or a portion of such Lenderβs rights and obligations under this Agreement (including all or a portion of its Financing Commitment and the Advances owing to it); provided that (1) such Lenderβs obligations under this Agreement shall remain unchanged, (2) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (3) the Company, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenderβs rights and obligations under this Agreement; provided, further, that, so long as no Event of Default shall have occurred and be continuing and no Market Value Event shall have occurred, if any such Lender Participant is not a bank, a Permitted Insurance Company or broker-dealer, the consent of the Company to such sale will be required. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Lender Participant, agree to any Material Amendment that affects such Lender Participant.
(d) Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Company, maintain a register on which it enters the name and address of each Lender Participant and the principal amounts (and stated interest) of each Lender Participantβs interest in the Advances or other obligations under this Agreement (the βParticipant Registerβ); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Lender Participant or any information relating to a Lender Participantβs interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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(e) The Company agrees that each Lender Participant shall be entitled to the benefits of Sections 3.01(e), 3.01(f) and 3.03 (subject to the requirements and limitations therein, including the requirements under Section 3.03(f) (it being understood that the documentation required under Section 3.03(f) shall be delivered to the Lender that sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Lender Participant (A) agrees to be subject to the provisions of Section 3.01(f) relating to replacement of Lenders as if it were an assignee under paragraph (b) of this Section 10.06 and (B) shall not be entitled to receive any greater payment under Sections 3.01(e), 3.01(f) and 3.03, with respect to any participation, than the Lender that sells the participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Lender Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Companyβs request and expense, to use reasonable efforts to cooperate with the Company to effectuate the replacement of Lenders provisions set forth in Section 3.01(f) with respect to any Lender Participant.
(f) Notwithstanding anything in this Section 10.06 to the contrary, the aggregate number of assignees and Lender Participants, collectively, of any Lender (excluding Affiliates of such Lender) shall not exceed eight.
SECTION 10.07. Governing Law; Submission to Jurisdiction; Etc.
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SECTION 10.12. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in this Agreement or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under this Agreement may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(1) a reduction in full or in part or cancellation of any such liability;
(2) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement; or
(3) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
As used herein:
βBail-In Actionβ means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
βBail-In Legislationβ means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
βEEA Financial Institutionβ means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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βEEA Member Countryβ means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
βEEA Resolution Authorityβ means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
βEU Bail-In Legislation Scheduleβ means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
βWrite-Down and Conversion Powersβ means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
[remainder of page intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
CCT SE I LLC, as Company | |||
By | |||
Name: | |||
Title: |
CORPORATE CAPITAL TRUST, INC., as Portfolio Manager | |||
By | |||
Name: | |||
Title: |
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent | |||
By | |||
Name: | |||
Title: |
STATE STREET BANK AND TRUST COMPANY, as Collateral Agent | |||
By | |||
Name: | |||
Title: |
STATE STREET BANK AND TRUST COMPANY, as Intermediary | |||
By | |||
Name: | |||
Title: |
STATE STREET BANK AND TRUST COMPANY, as Collateral Administrator | |||
By | |||
Name: | |||
Title: |
The Lenders | |||
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Lender | |||
By | |||
Name: | |||
Title: |
SCHEDULE 1
Transaction Schedule
1. |
Lenders
|
Financing Commitment (as reduced from time to time pursuant to Section 4.07)
| |
JPMorgan Chase Bank, National Association |
Prior to an Accordion Date: U.S. $300,000,000 After an Accordion Date, if any: U.S. $300,000,000 plus the principal amount of each Accordion Option up to U.S. $400,000,000 | ||
2. | Scheduled Termination Date: | November 29, 2020 | |
3. | Interest Rates | ||
Applicable Margin for Advances: |
With respect to interest based on the LIBO Rate, 3.00% per annum (subject to increase in accordance with Section 3.01(b)). With respect to interest based on the Base Rate, 3.00% per annum (subject to increase in accordance with Section 3.01(b)). | ||
4. | Account Numbers | ||
Securities Accounts: | |||
Custodial Account: | 00000000-1 | ||
Collection Account: | 00000000 | ||
MV Cure Account: | 00000000-2 | ||
Unfunded Exposure Account: | 00000000-3 | ||
Deposit Accounts: | |||
Custodial Account: | 00000000-1D | ||
Collection Account: | 00000000-D | ||
MV Cure Account: | 00000000-2D | ||
Unfunded Exposure Account: | 00000000-3D | ||
5. | Market Value Trigger: | 141.84% | |
6. | Market Value Cure Level: | 145.99% | |
7. | Purchases of Restricted Securities | ||
Notwithstanding anything herein to the contrary, no Portfolio Investment may constitute, at the time of initial purchase, a Restricted Security. As used herein, βRestricted Securityβ means any security that forms part of a new issue of publicly or privately issued securities (a) with respect to which an Affiliate of any Lender that is a βbrokerβ or a βdealerβ, within the meaning of the Securities Exchange Act of 1934, participated in the distribution as a member of a selling syndicate or group within 30 days of the proposed purchase by the Company and (b) which the Company proposes to purchase from any such Affiliate of any Lender. |
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Addresses for Notices
| ||
The Company: | CCT SE I LLC |
Attn: Xxxxxxx Xxxxxx Email: Xxxxxxx.Xxxxxx@XXX.xxx |
The Portfolio Manager: | Corporate Capital Trust, Inc. |
Attn: Xxxxxxx Xxxxxx Email: Xxxxxxx.Xxxxxx@XXX.xxx |
The Administrative Agent: |
JPMorgan Chase Bank, National Association c/o JPMorgan Services Inc. 000 Xxxxxxx Xxxxxxxxxx Xx., Xxxxxx, Xxxxxxxx 00000 |
Attention: Xxxx Xxxxx Telephone: (000) 000-0000
|
with a copy to
|
||
JPMorgan Chase Bank, National Association 000 Xxxxxxx Xxx. Xxx Xxxx, Xxx Xxxx 00000
|
Attention: Xxxxx Xxxxxxxx Telephone: 000-000-0000 Email: xxxxx.xxxxxxxx@xxxxxxxx.xxx xxxxx.x.xxxx@xxxxxxxx.xxx Xx.Xxx@xxxxxxxx.xxx xxxxxxx.xxxxx@xxxxxxxx.xxx Xxxxx.X.Xxxxx@xxxxxxxx.xxx Xxxxxxx.Xxxxxxx@xxxxxxxx.xxx Xxxx.x.Xxxxxxx@xxxxxxxx.xxx Xxxxxx.Xxxxx@xxxxxxxx.xxx xx.xxxxxxxxx.xxxxxxxx@xxxxxxxx.xxx xx_xxxxxx_xxxxxxxx@xxxxxxxx.xxx Xxxxx.x.xxxxxxx@xxxxxxxx.xxx | |
The Collateral Agent: |
State Street Bank and Trust Company 0 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxxxx 00000 |
Attention: Xxxxx Xxxxx Telephone: (000) 000-0000 Email: xxxxx.xxxxx@xxxxxxxxxxx.xxx |
The Intermediary: |
State Street Bank and Trust Company 0 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxxxx 00000 |
Attention: Xxxxx Xxxxx Telephone: (000) 000-0000 Email: xxxxx.xxxxx@xxxxxxxxxxx.xxx |
The Collateral Administrator: |
State Street Bank and Trust Company 0 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxxxx 00000 |
Attention: Xxxxx Xxxxx Telephone: (000) 000-0000 Email: xxxxx.xxxxx@xxxxxxxxxxx.xxx |
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JPMCB: |
JPMorgan Chase Bank, National Association c/o JPMorgan Services Inc. 000 Xxxxxxx Xxxxxxxxxx Xx., Xxxxxx, Xxxxxxxx 00000 |
Attention: Xxxxxx Xxxxxxx Facsimile: (000) 000-0000
|
with a copy to:
JPMorgan Chase Bank, National Association 000 Xxxxxxx Xxx. Xxx Xxxx, Xxx Xxxx 00000
|
Attention: Xxxxx Xxxxxxxx Telephone: 000-000-0000
| |
Each other Lender: | The address (or facsimile number or electronic mail address) provided by it to the Administrative Agent. |
SCHEDULE 2
Contents of Notices of Acquisition
Each Notice of Acquisition shall include the following information for the related Portfolio Investment(s):
JPMorgan Chase Bank, National Association,
as Administrative Agent
c/o JPMorgan Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xx., 0xx Xxxxx
Attention: Xxxx Xxxxx
Email: xxxx.x.xxxxx@xxxxxxxx.xxx
JPMorgan Chase Bank, National Association,
as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Email: xxxxx.xxxxxxxx@xxxxxxxx.xxx
xxxxx.x.xxxx@xxxxxxxx.xxx
Xx.Xxx@xxxxxxxx.xxx
xxxxxxx.xxxxx@xxxxxxxx.xxx
Xxxxx.X.Xxxxx@xxxxxxxx.xxx
Xxxxxxx.Xxxxxxx@xxxxxxxx.xxx
Xxxx.x.Xxxxxxx@xxxxxxxx.xxx
Xxxxxx.Xxxxx@xxxxxxxx.xxx
xx.xxxxxxxxx.xxxxxxxx@xxxxxxxx.xxx
xx_xxxxxx_xxxxxxxx@xxxxxxxx.xxx
Xxxxx.x.xxxxxxx@xxxxxxxx.xxx
JPMorgan Chase Bank, National Association,
as Lender
c/o JPMorgan Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xx., 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
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cc:
State Street Bank and Trust Company, as Collateral Agent
State Street Bank and Trust Company, as Collateral Administrator
Ladies and Gentlemen:
Reference is hereby made to the Loan and Security Agreement, dated as of November 29, 2016 (as amended, the βAgreementβ), among CCT SE I LLC, as borrower (the βCompanyβ), JPMorgan Chase Bank, National Association, as administrative agent (the βAdministrative Agentβ), Corporate Capital Trust, Inc., as portfolio manager (the βPortfolio Managerβ), the lenders party thereto and the collateral agent, collateral administrator and intermediary party thereto. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given such terms in the Agreement.
Pursuant to the Agreement, the Portfolio Manager hereby [requests approval for the Company to acquire][notifies the Administrative Agent of the Companyβs intention to acquire] the following Portfolio Investment(s):
Obligor | Identifier (LoanX or CUSIP) | Tranche | Type (0xx xxxx, 0xx xxxx) | Notional | Maturity Date | Currency Type ID | Jurisdiction | Spot Rate | Fixed | Spread | LIBOR Floor | Price | Moodyβs Industry Classification1 | Proposed Settlement Date |
To the extent available, we have included herewith (1) the material underlying instruments (including the collateral and security documents) relating to each such Portfolio Investment, (2) an audited financial statement for the previous most recently ended three years of the obligor of each such Portfolio Investment, to the extent available, or alternatively a quality of earnings report prepared by an accredited accounting firm, (3) to the extent available, the quarterly statements of the obligor of each such Portfolio Investment for the current fiscal year and the immediately preceding fiscal year, (4) final investment committee memo (with redactions of confidential information as the Company (or the Portfolio Manager on its behalf) deems appropriate and (5) forecasted financials for 1 year (or longer, if prepared). The Portfolio Manager acknowledges that it will provide such other information from time to time reasonably requested by the Administrative Agent so long as such information is within the possession of the Portfolio Manager or may be obtained with neither undue burden nor expense.2
We hereby certify that all conditions to the Purchase of such Portfolio Investment(s) set forth in Section 1.03 of the Agreement are satisfied.
1 Per Schedule 6 of the Agreement.
2 Company to deliver pre-signed assignment agreement if the Portfolio Manager and the administrative agent for the proposed Portfolio Investment are affiliates.
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Very truly yours, | ||
Corporate Capital Trust, Inc., as Portfolio Manager | ||
By | ||
Name: | ||
Title: |
SCHEDULE 3
Eligibility Criteria
1. | Such obligation is a Loan or a corporate debt security and is not a Synthetic Security, a Zero-Coupon Security, a Structured Finance Obligation, a Participation Interest or a Letter of Credit. |
2. | Such obligation does not require the making of any future advance or payment by the Company to the issuer thereof or any related counterparty except in connection with a Delayed Funding Term Loan or a Revolving Loan. |
3. | Such obligation is eligible to be entered into by, sold or assigned to the Company and pledged to the Collateral Agent. |
4. | Such obligation is denominated and payable in an Eligible Currency and purchased at a price that is at least 80% of the par amount of such obligation. |
5. | Such obligation is issued by a company organized in an Eligible Jurisdiction. |
6. | It is an obligation upon which no payments are subject to deduction or withholding for or on account of any withholding Taxes imposed by any jurisdiction unless the related obligor is required to make βgross-upβ payments that cover the full amount of any such withholding Taxes (subject to customary conditions to such payments which the Company (or the Portfolio Manager on behalf of the Company) in its good faith reasonable judgment expects to be satisfied). |
7. | Such obligation is not subject to an event of default (as defined in the underlying instruments for such obligation) in accordance with its terms (including the terms of its underlying instruments after giving effect to any grace and/or cure period set forth in the related loan agreement, but not to exceed five (5) days) and no Indebtedness of the obligor thereon ranking pari passu with or senior to such obligation is in default with respect to the payment of principal or interest or is subject to any other event of default that would trigger a default under the related loan agreement (after giving effect to any grace and/or cure period set forth in the related loan agreement, but not to exceed five (5) days) (a βDefaulted Obligationβ). |
8. | The timely repayment of such obligation is not subject to non-credit-related risk as determined by the Portfolio Manager in its good faith and reasonable judgment. |
9. | It is not at the time of purchase or commitment to purchase the subject of an offer other than an offer pursuant to the terms of which the offeror offers to acquire a debt obligation in exchange for consideration consisting solely of cash in an amount equal to or greater than the full face amount of such debt obligation plus any accrued and unpaid interest. |
10. | Such obligation is not an equity security and does not provide, on the date of acquisition, for conversion or exchange at any time over its life into an equity security. |
11. | Such obligation provides for periodic payments of interest thereon in cash at least semi-annually. |
12. | Such obligation will not cause the Company or the pool of Collateral to be required to register as an investment company under the Investment Company Act of 1940, as amended. |
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The following capitalized terms used in this Schedule 3 shall have the meanings set forth below:
βEligible Currencyβ means U.S. dollars, Euros, GBP, AUD, NZD and CAD.
βEligible Jurisdictionsβ means the United States and any State therein, Bermuda, the Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxxxxx and any Euro Zone country.
βLetter of Creditβ means a facility whereby (i) a fronting bank (βLOC Agent Bankβ) issues or will issue a letter of credit (βLCβ) for or on behalf of a borrower pursuant to an underlying instrument, (ii) if the LC is drawn upon, and the borrower does not reimburse the LOC Agent Bank, the lender/participant is obligated to fund its portion of the facility and (iii) the LOC Agent Bank passes on (in whole or in part) the fees and any other amounts it receives for providing the LC to the lender/participant.
βStructured Finance Obligationβ means any obligation issued by a special purpose vehicle and secured directly by, referenced to, or representing ownership of, a pool of receivables or other financial assets of any obligor, including collateralized debt obligations and mortgage-backed securities.
βSynthetic Securityβ means a security or swap transaction, other than a participation interest or a letter of credit, that has payments associated with either payments of interest on and/or principal of a reference obligation or the credit performance of a reference obligation.
βZero-Coupon Securityβ means any debt security that by its terms (a) does not bear interest for all or part of the remaining period that it is outstanding or (b) pays interest only at its stated maturity.
SCHEDULE 4
Concentration Limitations
The βConcentration Limitationsβ shall be satisfied on any date of determination if, in the aggregate, the Portfolio Investments owned (or in relation to a proposed purchase of a Portfolio Investment, proposed to be owned) by the Company comply with all the requirements set forth below:
1. | Portfolio Investments issued by a single obligor and its affiliates may not exceed an aggregate principal balance equal to 5.0% of the Collateral Principal Amount (or, prior to the end of the Ramp-Up Period, $25,000,000); provided that Portfolio Investments issued by two (2) obligors and their respective affiliates may each constitute up to an aggregate principal balance equal to 6.0% of the Collateral Principal Amount (or, prior to the end of the Ramp-Up Period, $30,000,000). Notwithstanding the foregoing, no obligor shall deemed an affiliate of any person solely because they are under the control of the same private equity sponsor or similar sponsor or because such obligor is owned by a common holding company with an obligor of another obligation so long as the collateral securing such loans is not common. |
2. | Not less than 70% of the Collateral Principal Amount may consist of Senior Secured Loans and cash and Eligible Investments on deposit in the Account as Principal Proceeds. |
3. | Not more than 30% of the Collateral Principal Amount may consist of Second Lien Loans and Mezzanine Obligations; |
4. | Not more than 15% of the Collateral Principal Amount may consist of Mezzanine Obligations; |
5. | Not more than 20% of the Collateral Principal Amount may consist of Portfolio Investments that are issued by obligors that belong to the same Xxxxxβx Industry Classification, as determined by the Portfolio Manager in its commercially reasonable discretion; provided that Portfolio Investments that are issued by obligors that belong to one Xxxxxβx Industry Classification may constitute up to 25% of the Collateral Principal Amount. As used herein, βXxxxxβx Industry Classificationsβ means the industry classifications set forth in Schedule 6 hereto, as such industry classifications shall be updated at the option of the Portfolio Manager (with the consent of the Administrative Agent) if Xxxxxβx publishes revised industry classifications. |
6. | Not more than an aggregate of 15% of the Collateral Principal Amount may consist of Portfolio Investments denominated in a Permitted Non-USD Currency. |
7. | Not more than an aggregate of 15% of the Collateral Principal Amount may consist of Portfolio Investments whose obligors are organized in Eligible Jurisdictions other than the United States. |
8. | The Unfunded Exposure Amount shall not exceed 10% of the Collateral Principal Amount. |
For the purposes of clauses 1 through 7 above, the principal amount of the applicable Portfolio Investment shall including the funded and unfunded balance on any Delayed Funding Term Loan or Revolving Loan, as applicable, as of such date.
SCHEDULE 5
Initial Portfolio Investments
Issuer | Asset Type (KKR) | Lien
Type |
Notional | Currency | Issuer Domicile | Xxxxx Industry | Fixed Rate | Floating Spread Floor | Spread | Maturity
Date |
Abaco Systems, Inc | Term Loan | First Lien | 10,000,000 | USD | USA | High Tech Industies | 1.00% | 6.00% | 12/7/2021 | |
Abaco Systems, Inc | Term Loan | Second Lien | 15,000,000 | USD | USA | High Tech Industies | 1.00% | 10.50% | 6/7/2022 | |
Agro Merchants NAI Holdings, LLC | Term Loan | First Lien | 25,000,000 | USD | USA | Transportation: Cargo | 1.00% | 7.00% | 10/1/2020 | |
Alion Science & Technology Corp | Bond | NA | 25,000,000 | USD | USA | Aerospace & Defense | 11.00% | 8/19/2022 | ||
Xxxx Inc | Term Loan | Second Lien | 30,000,000 | USD | USA | Retail | 10.50% | 6/12/2023 | ||
Casual Dining Group Ltd | Term Loan | First Lien | 25,000,000 | GBP | UK | Beverage, Food & Tobacco | 0.00% | 8.25% | 12/11/2020 | |
Exemplis Corp | Term Loan | First Lien | 25,000,000 | USD | USA | Capital Equipment | 1.00% | 6.50% | 3/23/2022 | |
JHT Holdings Inc | Term Loan | First Lien | 25,000,000 | USD | USA | Transportation: Cargo | 1.00% | 8.50% | 5/4/2022 | |
MCS AMS Sub-Holdings LLC | Term Loan | First Lien | 25,000,000 | USD | USA | Services: Business | 1.00% | 6.50% | 10/15/2019 | |
MedAssets Inc | Term Loan | Second Lien | 25,000,000 | USD | USA | Healthcare & Pharmaceuticals | 1.00% | 9.75% | 4/20/2023 | |
New Enterprise Stone & Lime Co Inc | Term Loan | First Lien | 30,000,000 | USD | USA | Construction & Building | 1.00% | 8.00% | 3/19/2021 | |
P&L Development LLC | Term Loan | First Lien | 25,000,000 | USD | USA | Healthcare & Pharmaceuticals | 8.50% | 5/1/2020 | ||
Petrochoice Holdings Inc | Term Loan | Second Lien | 25,000,000 | USD | USA | Consumer goods: non-durable | 1.00% | 8.75% | 8/21/2023 | |
Waste Pro USA Inc | Term Loan | First Lien | 25,000,000 | USD | USA | Environment Industries | 1.00% | 7.50% | 10/15/2020 | |
Willbros Group Inc | Term Loan | First Lien | 25,000,000 | USD | USA | Utilities: Oil & Gas | 1.25% | 9.75% | 12/15/2019 |
SCHEDULE 6
Xxxxxβx Industry Classifications | |
Industry
Code |
Description |
1 | Aerospace & Defense |
2 | Automotive |
3 | Banking, Finance, Insurance & Real Estate |
4 | Beverage, Food & Tobacco |
5 | Capital Equipment |
6 | Chemicals, Plastics & Rubber |
7 | Construction & Building |
8 | Consumer goods: Durable |
9 | Consumer goods: Non-durable |
10 | Containers, Packaging & Glass |
11 | Energy: Electricity |
12 | Energy: Oil & Gas |
13 | Environmental Industries |
14 | Forest Products & Paper |
15 | Healthcare & Pharmaceuticals |
16 | High Tech Industries |
17 | Hotel, Gaming & Leisure |
18 | Media: Advertising, Printing & Publishing |
19 | Media: Broadcasting & Subscription |
20 | Media: Diversified & Production |
21 | Metals & Mining |
22 | Retail |
23 | Services: Business |
24 | Services: Consumer |
25 | Sovereign & Public Finance |
26 | Telecommunications |
27 | Transportation: Cargo |
28 | Transportation: Consumer |
29 | Utilities: Electric |
30 | Utilities: Oil & Gas |
31 | Utilities: Water |
32 | Wholesale |
EXHIBIT A
Form of Request for Advance
JPMorgan
Chase Bank, National Association,
as Administrative Agent
c/o JPMorgan Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xx., 0xx Xxxxx
Attention: Xxxx Xxxxx
JPMorgan Chase Bank, National Association,
as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Email: xxxxx.xxxxxxxx@xxxxxxxx.xxx
xxxxx.x.xxxx@xxxxxxxx.xxx
Xx.Xxx@xxxxxxxx.xxx
xxxxxxx.xxxxx@xxxxxxxx.xxx
Xxxxx.X.Xxxxx@xxxxxxxx.xxx
Xxxxxxx.Xxxxxxx@xxxxxxxx.xxx
Xxxx.x.Xxxxxxx@xxxxxxxx.xxx
Xxxxxx.Xxxxx@xxxxxxxx.xxx
xx.xxxxxxxxx.xxxxxxxx@xxxxxxxx.xxx
xx_xxxxxx_xxxxxxxx@xxxxxxxx.xxx
Xxxxx.x.xxxxxxx@xxxxxxxx.xxx
JPMorgan
Chase Bank, National Association,
as Lender
c/o JPMorgan Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xx., 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
cc:
State Street Bank and Trust Company, as Collateral Agent
State Street Bank and Trust Company, as Collateral Administrator
Ladies and Gentlemen:
Reference is hereby made to the Loan and Security Agreement, dated as of November 29, 2016 (as amended, the βAgreementβ), among CCT SE I LLC, as borrower (the βCompanyβ), JPMorgan Chase Bank, National Association, as administrative agent (the βAdministrative Agentβ), Corporate Capital Trust, Inc., as portfolio manager (the βPortfolio Managerβ), the lenders party thereto, and the collateral agent, collateral administrator and intermediary party thereto. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given such terms in the Agreement.
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Pursuant to the Agreement, you are hereby notified of the following:
(1) The Company hereby requests an Advance under Section 2.03 of the Agreement to be funded on [____________].
(2) The aggregate amount of the Advance requested hereby is U.S.$[_________].3
(3) The proposed purchases (if any) relating to this request are as follows:
Security | Par | Price | Purchased Interest (if any) |
We hereby certify that all conditions to the Purchase of such Portfolio Investment(s) and/or to an Advance set forth in Section 1.03 of the Agreement have been satisfied or waived as of the related Trade Date (and shall be satisfied or waived as of the related Settlement Date) and/or Advance date, as applicable.
Very truly yours, | ||
CCT SE I LLC | ||
By | ||
Name: Title: |
3 Note: The requested Advance shall be in an amount such that, after giving effect thereto and the related purchase of the applicable Portfolio Investment(s) (if any), the Borrowing Base Test is satisfied.
EXHIBIT B
Form of Reports