Exhibit (k) (3) (i)
AGREEMENT OF AMENDMENT No. 2 AND ASSIGNMENT
Dated as of August 20, 2010
Reference is made to that certain Revolving Credit and Security
Agreement dated as of August 24, 2009 (as from time to time amended,
supplemented, waived or modified, the "Credit Agreement") among Invesco Xxx
Xxxxxx Senior Loan Fund (the "Borrower"), XXXXXX, LLC (the "Conduit Lender"),
Citibank, N.A. (the "Secondary Lender"), State Street Bank and Trust Company
(the "Direct Lender") and Citicorp North America, Inc., as program agent (the
"Program Agent"). Capitalized terms used and not defined herein shall have the
meanings assigned to them in the Credit Agreement.
The parties hereto agree that, effective as of the date hereof, the
definition of "Applicable Margin" set forth in Section 1.01 of the Credit
Agreement shall be amended by replacing it in its entirety with the following:
""Applicable Margin" means 3.25% per annum, provided, however, that
during the continuance of any Event of Default the "Applicable
Margin" shall mean 4.50% per annum."
The parties hereto agree that, effective as of the date hereof, the
definition of "Class B Loan Asset" set forth in Section 1.01 of the Credit
Agreement shall be amended by replacing it in its entirety with the following:
""Class B Loan Asset" means as of any date of determination, a
Borrowing Base Eligible Asset which (i) is a Loan Asset, (ii) is not
a Distressed Loan Asset, and (iii) has an Asset Value which is less
than ninety percent (90%) of its par value but greater than or equal
to thirty-seven and one-half percent (37.5%) of its par value as of
such date of determination."
The parties hereto agree that, effective as of the date hereof, the
definition of "CP Rate" set forth in Section 1.01 of the Credit Agreement shall
be amended by replacing the percentage "6.00%" set forth in the last proviso
thereof with the percentage "4.50%".
The parties hereto agree that, effective as of the date hereof,
clause (i) of the definition of "Direct Lender Alternate Base Rate" set forth in
Section 1.01 of the Credit Agreement shall be amended by replacing the
percentage "6.00%" set forth in the proviso thereof with the percentage "4.50%".
The parties hereto agree that, effective as of the date hereof, the
definition of "Direct Lender Applicable Margin" set forth in Section 1.01 of the
Credit Agreement shall be amended by replacing it in its entirety with the
following:
""Direct Lender Applicable Margin" means 3.25% per annum, provided,
however, that during the continuance of any Event of Default the
"Direct Lender Applicable Margin" shall mean 4.50% per annum."
The parties hereto agree that, effective as of the date hereof,
clause (i) of the definition of "Direct Lender Rate" set forth in Section 1.01
of the Credit Agreement shall be amended by replacing the percentage "6.00%" set
forth in the proviso thereof with the percentage "4.50%".
The parties hereto agree that, effective as of the date hereof, the
definition of "Distressed Loan Asset" set forth in Section 1.01 of the Credit
Agreement shall be amended by (i) deleting the word "or" set forth immediately
prior to clause (vi) thereof, and (ii) adding the following in its entirety at
the end of clause (vi) thereof:
", or (vii) which has an Asset Value which is less than thirty-seven
and one-half percent (37.5%) of its par value."
The parties hereto agree that, effective as of the date hereof,
clause (iv) of the definition of "Eligible Loan Asset" set forth in Section 1.01
of the Credit Agreement shall be amended by inserting the words "first lien"
immediately prior to the words "senior secured credit facility" set forth
therein.
The parties hereto agree that, effective as of the date hereof, the
definition of "Stated Expiration Date" set forth in Section 1.01 of the Credit
Agreement shall be amended by replacing the date "August 20, 2010" set forth
therein with the date "August 18, 2011".
The parties hereto agree that, effective as of the date hereof,
Schedule III to the Credit Agreement shall amended by replacing it in its
entirety with Annex A attached hereto.
The parties hereto agree that, effective as of the date hereof,
Citicorp North America, Inc. (the "Assignor") hereby absolutely and
unconditionally assigns, without recourse, to Citibank, N.A. (the "Assignee"),
and the Assignee hereby assumes, without recourse to or representation of any
kind from Assignor, all of the Assignor's rights and obligations in, to and
under the Credit Agreement and under the other Program Documents, and each of
the Lenders, the Secondary Lenders and the Direct Lenders hereby appoints the
Assignee as Program Agent under the Credit Agreement and the other Program
Documents on the terms and conditions set forth in Article VIII of the Credit
Agreement. Effective as of the date hereof, (i) the Assignee shall be a party to
and bound by the provisions of the Credit Agreement and the other Program
Documents and have the rights and obligations of the Program Agent thereunder,
and (ii) the Assignor shall relinquish its rights and be released from its
obligations under the Credit Agreement and the other Program Documents, except
than any such rights or obligations which are specifically designated to survive
the termination of such Agreement shall survive and remain the ongoing
obligations of the Assignor in accordance with the terms thereof.
The parties hereto agree that, effective as of the date hereof, (i)
each reference to "Citicorp North America, Inc." set forth in the Credit
Agreement and the other Program Documents shall be a reference to "Citibank,
N.A.", and (ii) each reference to the "Program Agent" set forth in the Credit
Agreement and the other Program Documents shall be deemed to refer to Citibank,
N.A., as program agent for the Secured Parties.
The parties hereto agree that, effective as of the date hereof,
Section 9.02 of the Credit Agreement shall be amended by replacing the
information set forth therein under each of
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the headings "If to the Conduit Lender" and "If to the Program Agent" with the
following, as applicable:
"If to the Conduit Lender: XXXXXX, LLC
c/o Citibank, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Portfolio Management
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Program Agent: Citibank, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Portfolio Management
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000".
The Borrower represents and warrants to the Program Agent, the
Conduit Lender, the Secondary Lender and the Direct Lender that immediately
after giving effect to this Agreement of Amendment No. 2 and Assignment, (i) its
representations and warranties set forth in the Credit Agreement are true and
correct in all material respects, and (ii) no Default or Event of Default shall
have occurred and be continuing.
All references to the Credit Agreement or any other Program Document
on and after the date hereof shall be deemed to refer to the Credit Agreement
and to such Program Documents as amended hereby, and the parties hereto agree
that on and after the date hereof the Credit Agreement and the other Program
Documents, as amended hereby, are in full force and effect.
This Agreement of Amendment No. 2 and Assignment may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same agreement.
THIS AGREEMENT OF AMENDMENT NO. 2 AND ASSIGNMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
CITICORP NORTH AMERICA, INC., CITIBANK, N.A.,
as Program Agent and Assignor as Secondary Lender and Assignee
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------- ----------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
XXXXXX, LLC, INVESCO XXX XXXXXX SENIOR LOAN FUND,
as Conduit Lender as Borrower
By: Citibank, N.A., as
Attorney-in-Fact
By: /s/ Xxxxx X. Xxxxx By: Xxxx X. Xxxx
------------------------------- ----------------------------
Name: Xxxxx X. Xxxxx Name: Xxxx X. Xxxx
Title: Vice President Title:
STATE STREET BANK AND TRUST COMPANY, INVESCO ADVISERS, INC.,
as Direct Lender as Adviser
By: /s/ Xxxxx X. Xxxxx By: Xxxx X. Xxxx
------------------------------- ----------------------------
Name: Xxxxx X. Xxxxx Name: Xxxx X. Xxxx
Title: Vice President Title:
ANNEX A
TO AGREEMENT OF AMENDMENT
NO. 2 AND ASSIGNMENT
SCHEDULE III
LIST OF ADVANCE RATES
RATING CATEGORIES PERCENTAGE
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1. Cash 100%
2. Assets which are Eligible Government Securities and which mature 100%
in one (1) day
3. Assets which are Eligible Government Securities and which mature 90%
in one (1) year or less, but more than one (1) day
4. Assets which are Eligible Government Securities and which mature 88%
in two (2) years or less, but more than one (1) year
5. Assets which are Eligible Government Securities and which mature 86%
in three (3) years or less, but more than two (2) years
6. Assets which are Eligible Government Securities and which mature 84%
in five (5) years or less, but more than three (3) years
7. Eligible Commercial Paper Notes 90%
8. Class A Loan Assets 75%
9. Class B Loan Assets 65%
