ARTICLE II Amendments to Loan and Servicing Agreement
EXECUTION COPY
SECOND AMENDMENT TO LOAN AND SERVICING AGREEMENT (this
"Amendment"), dated as of June 20, 2024 (the "Amendment Date"), among First Eagle Private Credit Fund SPV, LLC (together with its successors and assigns in such capacity, the "Borrower"), FEPC Fund Servicer LLC, as servicer (the "Servicer"), Xxxxxx Xxxxxxx Bank, N.A., as lender (the "Lender"), and Xxxxxx Xxxxxxx Senior Funding, Inc., as administrative agent (in such capacity, together with its successors and permitted assigns in such capacity, the "Administrative Agent").
WHEREAS, the Borrower, the Lender, the Administrative Agent, and the Servicer are party to that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as amended by the First Amendment to Loan and Servicing Agreement, dated as of January 4, 2024, and as may be further amended, modified or supplemented from time to time, the "Loan and Servicing Agreement"), by and among the Borrower, the Servicer, First Eagle Private Credit Fund, as the transferor, the lenders from time to time party thereto, the Administrative Agent, and U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian, providing, among other things, for the making and the administration of the Advances by the Lender to the Borrower; and
WHEREAS, the Borrower, the Lender, the Administrative Agent, and the Servicer desire to amend certain provisions of the Loan and Servicing Agreement, in accordance with Section 12.01 thereof and subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing premises and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. Terms used but not defined herein have the respective meanings given to such terms in the Loan and Servicing Agreement.
ARTICLE II
Amendments to Loan and Servicing Agreement
SECTION 2.1. As of the Amendment Date, the Loan and Servicing Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth on the pages of the Loan and Servicing Agreement attached as Appendix A hereto.
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ARTICLE III
Representations and Warranties
SECTION 3.1. Each of the Borrower and the Servicer hereby represents and warrants to the Administrative Agent and the Lender that, as of the Amendment Date, (i) no Unmatured Event of Default, Event of Default or Servicer Default has occurred and is continuing and (ii) the representations and warranties of each of the Borrower and the Servicer contained in the Loan and Servicing Agreement are true and correct in all material respects on and as of such date as though made on and as of such date (other than any representation and warranty that is made as of a specific date, which representation and warranty was true and correct in all material respects as of such date).
ARTICLE IV
Conditions Precedent
SECTION 4.1. This Amendment shall become effective as of the date first written above upon its execution and delivery by each party hereto.
ARTICLE V
Miscellaneous
SECTION 5.1. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 5.2. Severability Clause. In case any provision in this Amendment shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 5.3. Ratification. Except as expressly amended hereby, the Loan and Servicing Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Amendment shall form a part of the Loan and Servicing Agreement for all purposes.
SECTION 5.4. Counterparts. The parties hereto may sign one or more copies of this Amendment in counterparts, all of which together shall constitute one and the same agreement. Delivery of an executed signature page of this Amendment by email transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 5.5. Headings. The headings of the Articles and Sections in this Amendment are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
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[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the Amendment Date.
BORROWER:
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC
By: First Eagle Private Credit Fund, its sole member
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Chief Financial Officer
[Signature Page to Second Amendment to Loan Servicing Agreement]
SERVICER:
FEPC FUND SERVICER LLC
By: First Eagle Private Credit Fund, its sole member
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Chief Financial Officer
[Signature Page to Second Amendment to Loan Servicing Agreement]
ADMINISTRATIVE AGENT:
XXXXXX XXXXXXX SENIOR FUNDING,
INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
[Signature Page to Second Amendment to Loan Servicing Agreement]
LENDER:
XXXXXX XXXXXXX BANK, N.A.
By: /s/ Xxxxxxx Xxxxxx Xxxx
Name: Xxxxxxx Xxxxxx Xxxx
Title: Authorized Signatory
[Signature Page to Second Amendment to Loan Servicing Agreement]
Appendix A
Conformed Loan and Servicing Agreement [see attached]
(Conformed through Second Amendment to Loan and Servicing Agreement, dated January
4June 20, 2024)
Up to U.S. $350,000,000
LOAN AND SERVICING AGREEMENT
Dated as of September 22, 2023 among
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC,
as the Borrower
FIRST EAGLE PRIVATE CREDIT FUND,
as the Transferor
FEPC FUND SERVICER LLC,
as the Servicer
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as the Administrative Agent
EACH OF THE LENDERS FROM TIME TO TIME PARTY HERETO,
as the Lenders
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as the Collateral Agent and
U.S. BANK NATIONAL ASSOCIATION,
as the Account Bank and Collateral Custodian
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms..................................................................................................2
Section 1.02 Other Terms................................................................................................................72
Section 1.03 Computation of Time Periods .....................................................................................73
Section 1.04 Interpretation...............................................................................................................73
Section 1.05 Rates............................................................................................................................74
Section 1.06 Currency Conversion..................................................................................................74
ARTICLE II
THE FACILITY
Section 2.01 Advances; I/O Notional Loan.....................................................................................75
Section 2.02 Procedure for Advances..............................................................................................76
Section 2.03 Determination of Yield...............................................................................................77
Section 2.04 Remittance Procedures................................................................................................78
Section 2.05 Instructions to the Collateral Agent and the Account Bank........................................82
Section 2.06 Borrowing Base Deficiency Payments........................................................................83
Section 2.07 Sale of Loan Assets; Affiliate Transactions................................................................84
Section 2.08 Payments and Computations, Etc................................................................................89
Section 2.09 Unused Fee..................................................................................................................90
Section 2.10 Increased Costs; Capital Adequacy.............................................................................90
Section 2.11 Taxes...........................................................................................................................91
Section 2.12 Grant of a Security Interest; Collateral Assignment of Agreements...........................95
Section 2.13 Evidence of Debt.........................................................................................................96
Section 2.14 Release of Loan Assets...............................................................................................97
Section 2.15 Treatment of Amounts Received by the Borrower.....................................................97
Section 2.16 Prepayment; Termination; Reduction.........................................................................97
Section 2.17 Collections and Allocations........................................................................................98
Section 2.18 Reinvestment of Principal Collections......................................................................101
Section 2.19 Defaulting Lenders....................................................................................................102
Section 2.20 Benchmark Replacement Setting..............................................................................104
ARTICLE III CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Effectiveness......................................................................107
Section 3.02 Conditions Precedent to All Advances.....................................................................109
Section 3.03 Advances Do Not Constitute a Waiver.....................................................................112
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TABLE OF CONTENTS
(continued)
Page
Section 3.04 Conditions to Acquisition of Loan Assets................................................................112
ARTICLE IV REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower.....................................................114
Section 4.02 Representations and Warranties of the Borrower Relating to this
Agreement and the Collateral.. ..............................................................................122
Section 4.03 Representations and Warranties of the Servicer.......................................................123
Section 4.04 Representations and Warranties of the Collateral Agent..........................................127
Section 4.05 Representations and Warranties of the Collateral Custodian....................................128
ARTICLE V GENERAL COVENANTS
Section 5.01 Affirmative Covenants of the Borrower...................................................................129
Section 5.02 Negative Covenants of the Borrower........................................................................136
Section 5.03 Affirmative Covenants of the Servicer.....................................................................140
Section 5.04 Negative Covenants of the Servicer..........................................................................144
Section 5.05 Affirmative Covenants of the Collateral Agent........................................................145
Section 5.06 Negative Covenants of the Collateral Agent.............................................................145
Section 5.07 Affirmative Covenants of the Collateral Custodian..................................................146
Section 5.08 Negative Covenants of the Collateral Custodian......................................................146
ARTICLE VI
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 6.01 Appointment and Designation of the Servicer..........................................................146
Section 6.02 Duties of the Servicer................................................................................................148
Section 6.03 Authorization of the Servicer....................................................................................150
Section 6.04 Collection of Payments; Accounts............................................................................151
Section 6.05 Realization Upon Loan Assets..................................................................................153
Section 6.06 Servicer Compensation.............................................................................................153
Section 6.07 Payment of Certain Expenses by Servicer................................................................153
Section 6.08 Reports to the Administrative Agent; Account Statements; Servicer
Information................................................................................................................154
Section 6.09 Annual Statement as to Compliance.........................................................................156
Section 6.10 Annual Independent Public Accountant's Servicing Reports....................................156
Section 6.11 Procedural Review of Loan Assets; Access to Servicer and Servicer's
Records......................................................................................................................157
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TABLE OF CONTENTS
(continued)
Page
Section 6.12 The Servicer Not to Resign.......................................................................................158
ARTICLE VII EVENTS OF DEFAULT
Section 7.01 Events of Default.......................................................................................................158
Section 7.02 Additional Remedies of the Administrative Agent...................................................162
Section 7.03 Option to Purchase Collateral...................................................................................164
ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnities by the Borrower.....................................................................................165
Section 8.02 Indemnities by Servicer.............................................................................................167
Section 8.03 Waiver of Certain Claims..........................................................................................167
Section 8.04 Legal Proceedings.....................................................................................................167
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01 The Administrative Agent.........................................................................................168
ARTICLE X
COLLATERAL AGENT
Section 10.01 Designation of Collateral Agent...............................................................................172
Section 10.02 Duties of Collateral Agent.......................................................................................173
Section 10.03 Merger or Consolidation..........................................................................................177
Section 10.04 Collateral Agent Compensation...............................................................................177
Section 10.05 Collateral Agent Removal........................................................................................177
Section 10.06 Limitation on Liability.............................................................................................177
Section 10.07 Collateral Agent Resignation...................................................................................180
ARTICLE XI COLLATERAL CUSTODIAN
Section 11.01 Designation of Collateral Custodian........................................................................180
Section 11.02 Duties of Collateral Custodian.................................................................................181
Section 11.03 Merger or Consolidation..........................................................................................183
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TABLE OF CONTENTS
(continued)
Page
Section 11.04 Collateral Custodian Compensation.........................................................................184
Section 11.05 Collateral Custodian Removal.................................................................................184
Section 11.06 Limitation on Liability.............................................................................................184
Section 11.07 Collateral Custodian Resignation.............................................................................185
Section 11.08 Release of Documents..............................................................................................186
Section 11.09 Return of Required Loan Documents......................................................................186
Section 11.10 Access to Certain Documentation and Information Regarding the
Collateral..................................................................................................................187
Section 11.11 Bailment...................................................................................................................187
ARTICLE XII
MISCELLANEOUS
Section 12.01 Amendments and Waivers.......................................................................................187
Section 12.02 Notices, Etc..............................................................................................................188
Section 12.03 No Waiver; Remedies..............................................................................................191
Section 12.04 Binding Effect; Assignability; Multiple Lenders.....................................................191
Section 12.05 Term of This Agreement..........................................................................................192
Section 12.06 GOVERNING LAW; JURY WAIVER...................................................................193
Section 12.07 Costs, Expenses and Taxes......................................................................................194
Section 12.08 Further Assurances...................................................................................................195
Section 12.09 Recourse Against Certain Parties.............................................................................195
Section 12.10 Execution in Counterparts; Severability; Integration...............................................196
Section 12.11 Characterization of Conveyances Pursuant to the Purchase and Sale
Agreement................................................................................................................196
Section 12.12 Confidentiality..........................................................................................................197
Section 12.13 Waiver of Set Off.....................................................................................................199
Section 12.14 Headings and Exhibits.............................................................................................199
Section 12.15 Ratable Payments.....................................................................................................199
Section 12.16 Failure of Borrower or Servicer to Perform Certain Obligations............................199
Section 12.17 Power of Attorney....................................................................................................199
Section 12.18 Delivery of Termination Statements, Releases, etc.................................................199
Section 12.19 Non-Petition.............................................................................................................200
Section 12.20 Acknowledgment and Consent to Bail-In of Affected Financial
Institutions................................................................................................................200
Section 12.21 Return of Certain Payments.....................................................................................201
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LIST OF SCHEDULES, EXHIBITS AND ANNEXES
SCHEDULES
SCHEDULE I - Conditions Precedent Documents
SCHEDULE II - Eligibility Criteria
SCHEDULE III - Agreed-Upon Procedures for Independent Public Accountants SCHEDULE IV - Loan Asset Schedule
SCHEDULE V - Diversity Score Calculation
SCHEDULE VI - Industry Classification
SCHEDULE VII - Approved Valuation Agents
ANNEXES
ANNEX A - Commitments
EXHIBITS
EXHIBIT A - Form of Approval Notice
EXHIBIT B - Form of Borrowing Base Certificate
EXHIBIT C - Form of Disbursement Request
EXHIBIT D - Form of Notice of Borrowing
EXHIBIT E - Form of Notice of Reduction (Reduction of Advances Outstanding) EXHIBIT F - Form of Notice of Termination/Permanent Reduction
EXHIBIT G - Form of Certificate of Closing Attorneys
EXHIBIT H - Form of Servicing Report
EXHIBIT I - Form of Servicer's Certificate (Servicing Report)
EXHIBIT J - Form of Release of Required Loan Documents
EXHIBIT K - Form of Assignment and Acceptance
EXHIBIT L - Forms of U.S. Tax Compliance Certificates
EXHIBIT M - Form of Joinder Supplement
EXHIBIT N - Form of Power of Attorney for Servicer
EXHIBIT O - Form of Power of Attorney for Borrower
EXHIBIT P - Form of Equity Cure Notice
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This LOAN AND SERVICING AGREEMENT is made as of September 22, 2023, among:
(1) FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC, a Delaware limited liability company, as the Borrower (as defined below);
a Lender (as defined below);
Collateral Agent (as defined below); and
RECITALS
WHEREAS, the Borrower has requested that the Lenders make available to the Borrower a revolving loan facility in the maximum principal amount of up to the Facility Amount (as defined below), the proceeds of which shall be used by the Borrower to fund the purchase of certain Eligible Loan Assets (as defined below);
WHEREAS, the Borrower is willing to grant to the Collateral Agent, for the benefit of the Secured Parties (as defined below), a lien on and security interest in the Collateral (as defined below) to secure the payment in full of the Obligations (as defined below);
WHEREAS, the Lenders are willing to extend financing to the Borrower on the terms and conditions set forth herein;
WHEREAS, the Borrower also desires to retain the Servicer to perform certain servicing functions related to the Collateral on the terms and conditions set forth herein; and
WHEREAS, the Servicer desires to perform certain servicing functions related to the Collateral on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms.
"1940 Act" means the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
"Account Bank" means U.S. Bank National Association, in its capacity as the "Account Bank" pursuant to the Control Agreement.
"Action" has the meaning assigned to that term in Section 8.04.
"Additional Amount" has the meaning assigned to that term in Section 2.11(a). "Adjusted Borrowing Value" means, on any date of determination, for any Eligible Loan
Asset, an amount equal to (a) the Leverage Based Valuation Haircut (if any) multiplied by (b) the lower of (i) the Outstanding Balance of such Eligible Loan Asset at such time and (ii) (x) the Assigned Value of such Eligible Loan Asset at such time multiplied by (y) the Outstanding Balance of such Eligible Loan Asset at such time. Notwithstanding the foregoing, (i) the Adjusted Borrowing Value of any Loan Asset that is no longer an Eligible Loan Asset at such time shall be zero and (ii) the Adjusted Borrowing Value of any portion of any Eligible Loan Asset that constitutes Excess Concentration Amount shall be zero.
"Adjusted Daily Compounded XXXXX" means, for purposes of any calculation, the rate per annum equal to (a) Daily Compounded XXXXX for such calculation plus (b) the Daily Compounded XXXXX Adjustment.
"Adjusted Term XXXXX" means, for purposes of any calculation, the rate per annum
equal to (a) Term XXXXX for such calculation plus (b) the Term XXXXX Adjustment.
"Administrative Agent" means Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders, together with its successors and assigns, including any successor appointed pursuant to Article IX.
"Administrative Expense Cap" means, for any Payment Date, a per annum amount equal to $150,000.
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"Administrative Expenses" means the following fees and expenses due or accrued with respect to any Payment Date, payable on a pro rata basis to: (a) the Collateral Agent, for payment of accrued Collateral Agent Fees and Collateral Agent Expenses, (b) the Collateral Custodian, for payment of accrued Collateral Custodian Fees and Collateral Custodian Expenses and (c) the Account Bank, for any fees or other amounts owing to it under the Transaction Documents.
"Advance" means each loan advanced in each applicable Eligible Currency by the Lenders to the Borrower on an Advance Date pursuant to Article II.
"Advance Date" means, with respect to any Advance, the date on which funds are made available to the Borrower in accordance with Section 2.02.
"Advance Rate" means, with respect to an Eligible Loan Asset, as determined on the applicable Cut-Off Date of such Eligible Loan Asset as follows: (i) with respect to each Eligible Loan Asset that is not a Specified Loan Asset, the percentage determined by the Administrative Agent in its sole discretion, subject to a maximum advance rate as set forth in the Advance Rate Matrix based on the applicable loan type of such Eligible Loan Asset, as set forth in the Approval Notice for an Eligible Loan Asset and (ii) with respect to each Eligible Loan Asset that is a Specified Loan Asset, the advance rate percentage for such Specified Loan Asset based on the applicable criteria set forth in the Advance Rate Matrix.
"Advance Rate Matrix" means the following matrices that apply to (i) Private Credit Loan Assets and Liquid Credit Loan Assets (in each case that are not Specified Loan Assets and based on the applicable loan type) and (ii) Specified Loan Assets (based on the applicable criteria) as set forth below:
Private Credit Loan Assets that are not Specified Loan Assets
Loan Type |
Maximum Advance Rate |
|
|
First Lien Loans |
70.0% |
|
|
Unitranche Loans: |
|
If Total Leverage |
65.0% |
Ratio 4.75:1.00 ≤ x < |
|
5.50:1.00 |
|
If Total Leverage |
60.0% |
Ratio 5.50:1.00 ≤ x < |
|
6.60:1.00 |
|
If Total Leverage |
55.0% |
Ratio ≥ 6.50:1.00 |
|
|
|
Recurring Revenue Loans |
60.0% |
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Asset Based Loans |
50.0% |
|
|
FLLO Loans |
55.0% |
Liquid Credit Loan Assets that are not Specified Loan Assets
Loan Type |
Maximum Advance Rate |
|
|
Rated B3/B- or higher |
75.0% |
|
|
Rated Caa1/CCC+ or lower |
45.0% |
Specified Loan Assets
Criteria |
Advance Rate |
Senior Leverage Ratio of less |
70.0% |
than 4.75:1.00, EBITDA of |
|
greater than or equal to |
|
$25,000,000 |
|
Senior Leverage Ratio of |
65.0% |
greater than or equal to 4.75:1.00, |
|
EBITDA of greater than or equal |
|
to $25,000,000 |
|
Senior Leverage Ratio of less |
60.0% |
than 4.75:1.00, EBITDA of |
|
greater than or equal to |
|
$10,000,000 and less than |
|
$25,000,000 |
|
Senior Leverage Ratio of less |
57.5% |
than 4.75:1.00, EBITDA of |
|
greater than or equal to |
|
$7,500,000 and less than |
|
$25,000,000 |
|
"Advances Outstanding" means, on any date of determination, the sum of the aggregate principal amount in Dollars or the Dollar Equivalent, as determined by the Administrative Agent using the Spot Rate, of all Advances outstanding on such date, after giving effect to all repayments of Advances and the making of new Advances on such date; provided that the principal amounts of Advances Outstanding shall not be reduced by any Available Collections or other amounts if at any time such Available Collections or other amounts are rescinded or must
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be returned for any reason; provided, further, that for purposes of the determination of Yield and in connection with any reduction pursuant to Section 2.16 or any payments made in accordance with Section 2.04, "Advances Outstanding" shall refer only to Advances outstanding in the applicable Eligible Currency.
"Affected Financial Institution" means (a) any EEA Financial Institution or (b) any UK Financial Institution.
"Affected Party" has the meaning assigned to that term in Section 2.10(a).
"Affiliate" means, when used with respect to a Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to vote more than 50% of the voting securities of such Person or to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing; provided that the term Affiliate shall not include any Affiliate relationship which may exist solely as a result of direct or indirect ownership of, or control by, a common Financial Sponsor.
"Aggregate Adjusted Borrowing Value" means, as of any date of determination, an amount equal to the sum of the Adjusted Borrowing Values of all Eligible Loan Assets included as part of the Collateral on such date, after giving effect to all Eligible Loan Assets added to and removed from the Collateral on such date.
"Aggregate Unfunded Exposure Amount" means, as of any date of determination, the sum of the Unfunded Exposure Amounts of all Delayed Draw Loan Assets or Revolving Loans, as applicable, included in the Collateral on such date.
"Aggregate Unfunded Exposure Equity Amount" means, as of any date of determination, the sum of the Unfunded Exposure Equity Amounts of all Delayed Draw Loan Assets or Revolving Loans, as applicable, included in the Collateral on such date.
"Agreement" means this Loan and Servicing Agreement, as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms hereof.
"Amortization Period" means the period commencing on the Commitment Termination Date and ending on the Collection Date.
"Anti-Corruption Laws" means, any law, rule or regulation relating to the prevention of bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
"Anti-Money Laundering Laws" means any law, rule or regulation relating to the prevention of money laundering or the financing of terrorism, including the Bank Secrecy Act, as amended by the Patriot Act.
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"Applicable Law" means for any Person, all existing and future laws, rules, regulations, to the extent applicable to such Person or its property or assets, all 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.
"Applicable Margin" means (a) during the Revolving Period, 3.05% per annum and (b) during the Amortization Period, 3.55% per annum; provided that, at any time during the existence of an Event of Default or after the automatic occurrence or declaration of the Facility Maturity Date, the Applicable Margin shall be increased by an additional 2.00% per annum.
"Appraised Value" means, with respect to any Asset Based Loan, the sum of (a) the net liquidation value of the appraised Related Collateral that is required to be appraised under the terms of the Underlying Instruments, as such value is set forth in the most recent appraisal provided under the related Underlying Instruments, plus (b) the net liquidation value of Related Collateral that is not required to be appraised under the terms of the Underlying Instruments, as such value is determined and certified as to by the related Obligor pursuant to the Underlying Instruments.
"Approval Notice" means, with respect to any Eligible Loan Asset (other than a Specified Loan Asset), the written notice, which may be distributed via email, substantially in the form attached hereto, or otherwise containing the same representations and information, as Exhibit A (provided that the Administrative Agent may, in its reasonable discretion, omit information from, or include additional information in, such Approval Notice), evidencing (i) the approval by the Administrative Agent, in its sole and absolute discretion, of the acquisition or origination, as applicable, of such Eligible Loan Asset by the Borrower, and (ii) the determination of the Advance Rate in respect of such Eligible Loan Asset, by the Administrative Agent, in its sole and absolute discretion.
"Approved Broker/Dealer" means any of Bank of America/Xxxxxxx Xxxxx; The Bank of Montreal; The Bank of New York Mellon, N.A.; The Bank of Nova Scotia; Barclays Bank plc; BMO Xxxxxx Bank N.A.; BNP Paribas; Citibank, N.A.; Credit Agricole S.A.; Deutsche Bank AG; Xxxxxxx Xxxxx & Co.; HSBC Bank; JPMorgan Chase Bank, N.A.; Lloyds Bank; Xxxxxx Xxxxxxx & Co. LLC; Natixis; Royal Bank of Canada; The Royal Bank of Scotland plc; Societe Generale; UBS AG; Xxxxxxxxx LLC; and Xxxxx Fargo Bank, National Association; and any additional broker/dealer approved as an Approved Broker/Dealer in writing by the Servicer and the Administrative Agent, each in its sole discretion.
"Approved Valuation Agent" means, with respect to any Asset Based Loan, (a) any valuation firm or valuation agent listed on Schedule VII that is selected by the Borrower and specified in the Approval Notice or (b) any other valuation firm or valuation agent selected by the Borrower that is approved by the Administrative Agent in its sole discretion.
"Approved Valuation Firm" means each of (a) Lincoln Partners Advisors LLC, (b) Valuation Research Corporation, (c) Xxxxx Inc., (d) Xxxxxxxx Xxxxx Financial Advisors, Inc., (e)
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Xxxxxx, Xxxxxx and Company and (f) any other nationally recognized accounting firm or valuation firm approved by the Borrower and the Administrative Agent.
"Asset Based Loan" means a Loan Asset (i) that is underwritten based primarily on the appraised value of the assets securing such Loan Asset and (ii) in respect of which the advances are governed by a borrowing base relating to the assets securing such Loan Asset.
"Assigned Documents" has the meaning assigned to that term in Section 2.12(b). "Assigned Value" means (i) with respect to any Liquid Credit Loan Asset, its Assigned
Value (Liquid Credit) and (ii) with respect to any Private Credit Loan Asset, its Assigned Value (Private Credit).
"Assigned Value (Liquid Credit)" means, with respect to each Eligible Loan Asset that is a Liquid Credit Loan Asset and expressed as a percentage of the Outstanding Balance of such Eligible Loan Asset, the lowest of (a) 100%, (b) the Purchase Price of such Eligible Loan Asset and (c) the value (expressed as a percentage of the principal balance of such Eligible Loan Asset) assigned by the Administrative Agent in its sole discretion, in each case, as of the Cut-Off Date; provided, if such Eligible Loan Asset is an Owned Asset, the value assigned pursuant to this clause (c) shall be the value determined by the Administrative Agent as applied to its own account or the account of any of its Affiliates as of the Cut-Off Date; provided, further, the determination of the Assigned Value (Liquid Credit) of any such Eligible Loan Asset shall be subject to the following terms:
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Loan Asset occurs and the Administrative Agent has observed in the previous two (2) consecutive days Same Day Pricing with a minimum quote depth of less than three (3) with respect to such Eligible Loan Asset, the Assigned Value (Liquid Credit) of such Eligible Loan Asset shall be the value determined by the Administrative Agent in its sole discretion, which may be zero (at any time and from time to time) and, until the Administrative Agent has made such determination and provided notice thereof to the Borrower, will be 40%.
The Administrative Agent shall promptly notify the Servicer of any change effected by the Administrative Agent of the Assigned Value (Liquid Credit) of any Loan Asset.
"Assigned Value (Private Credit)" means, with respect to each Eligible Loan Asset that is not a Liquid Credit Loan Asset, as of any date of determination and expressed as a percentage of the Outstanding Balance of such Eligible Loan Asset, (a) with respect to any Eligible Loan Asset originated within sixty (60) days of its acquisition by the Borrower, (i) if the funding or origination price was greater than or equal to 97% of par, the par amount thereof and
(ii) otherwise, the funding or origination price, as applicable and (b) for any other Eligible Loan Asset, the lowest of (i) the Purchase Price of such Eligible Loan Asset, (ii) the fair market value assigned on the Borrower's books and records on the Cut-Off Date, (iii) the value (expressed as a percentage of the principal balance of such Eligible Loan Asset) assigned by the Administrative Agent in its sole discretion on the Cut-Off Date or (iv) the par amount of such Eligible Loan Asset; provided, with respect to a Delayed Draw Loan Asset, any portion subsequently drawn and contributed to the Borrower shall be given the Assigned Value (Private Credit) that is in effect for the previously contributed portion as of the related Cut-Off Date for the subsequently
8
drawn portion; provided, further, the determination of the Assigned Value (Private Credit) of any such Eligible Loan Asset shall be subject to the following terms:
9
two or more Third Party Bids pursuant to sub-clause (A)(I) above, then the average of such Third Party Bids shall be treated as the amended Assigned Value (Private Credit); if the Borrower obtains pricing pursuant to sub-clause (A)(II) above, then such pricing shall be treated as the amended Assigned Value (Private Credit); and if the Borrower obtains a valuation pursuant to sub-clause (B) above, then such valuation shall be treated as the amended Assigned Value (Private Credit).
The Administrative Agent shall promptly notify the Servicer of any change effected by the Administrative Agent of the Assigned Value (Private Credit) of any Loan Asset.
"Assignment and Acceptance" has the meaning assigned to that term in Section 12.04(a).
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"AUD" means the lawful currency of Australia.
"AUD Advance" means an Advance denominated in AUD.
"Availability" means, as of any date of determination, an amount equal to the excess, if any, of (a) the Borrowing Base over (b) the Advances Outstanding on such day; provided that at all times on and after the earlier to occur of the Commitment Termination Date or the Facility Maturity Date, the Availability shall be zero.
"Available Collections" means the sum of all Interest Collections and all Principal Collections received with respect to the Collateral; provided that, for the avoidance of doubt, "Available Collections" shall not include amounts on deposit in the Unfunded Exposure Account that do not represent proceeds of Permitted Investments.
"Available Tenor" means, as of any date of determination and with respect to the then-current Benchmark, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of a Remittance Period pursuant to this Agreement as of such date.
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
"Bail-In Legislation" means, (a) 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 and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
"Bankruptcy Code" means Title 11, United States Code, 11 U.S.C. §§ 101 et seq., as amended from time to time.
"Bankruptcy Event" means an event that shall be deemed to have occurred with respect to a Person if either:
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entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or
"Bankruptcy Laws" means the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief laws from time to time in effect affecting the rights of creditors generally.
"Bankruptcy Proceeding" means any case, action or proceeding before any court or other Governmental Authority relating to any Bankruptcy Event.
"Basel III" means, with respect to any Affected Party, any rule, regulation or guideline applicable to such Affected Party and arising directly or indirectly from (a) any of the following documents prepared by the Basel Committee on Banking Supervision of the Bank of International Settlements: (i) Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring (December 2010), (ii) Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems (June 2011), (iii) Basel III: The Liquidity Coverage Ratio and Liquidity Risk Monitoring Tools (January 2013), or (iv) any document supplementing, clarifying or otherwise relating to any of the foregoing, or (b) any accord, treaty, statute, law, rule, regulation, guideline or pronouncement (whether or not having the force of law) of any Governmental Authority implementing, furthering or complementing any of the principles set forth in the foregoing documents of strengthening capital and liquidity, in each case as from time to time amended, restated, supplemented or otherwise modified. Without limiting the generality of the foregoing, "Basel III" shall include Part 6 of the European Union regulation 575/2013 on prudential requirements for credit institutions and investment firms (the "CRR") and any law, regulation, standard, guideline, directive or other publication supplementing or otherwise modifying the CRR.
"BBSW" means, for any day with respect to any AUD Advance (or portion thereof) during a Remittance Period, the rate per annum (carried out to the fifth decimal place) equal to the rate determined by the Administrative Agent to be the offered rate that appears on the Reuters Screen BBSW Page (or any applicable successor or substitute page providing rate quotations comparable to those currently provided on such page of such service) at approximately 11:00 a.m. (Sydney time) on the BBSW Determination Date for such Remittance Period for deposits in AUD with a term equivalent to three months; provided that if such rate is not available at any such time for any reason, "BBSW" with respect to any AUD Advance shall be the rate at which AUD deposits of AUD5,000,000 and for a three-month maturity are offered by the principal Sydney office of any bank (which may be the Administrative Agent) reasonably selected by the Administrative Agent in immediately available funds at approximately 11:00 a.m.
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(Sydney time) on the BBSW Determination Date; provided, further, that in the event that the rate as so determined above shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. BBSW shall always be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
"BBSW Determination Date" means, with respect to each Remittance Period, the day that is two (2) Business Days prior to the first day of such Remittance Period.
"BDC Asset Coverage" means the "asset coverage" ratio for the Transferor, as determined in accordance with Section 18 of the 1940 Act.
"Benchmark" means with respect to (a) Dollar Advances, the Benchmark (Dollar), (b) GBP Advances, Daily Simple XXXXX, (c) Euro Advances, XXXXXXX, (d) CAD Advances, the Canadian Benchmark and (e) AUD Advances, BBSW.
"Benchmark (Dollar)" means, initially, Term SOFR; provided that if a Benchmark Transition Event and the Benchmark Replacement Date has occurred with respect to Term SOFR or the then-current Benchmark (Dollar), then "Benchmark (Dollar)" means the applicable Benchmark Replacement (Dollar) to the extent that such Benchmark Replacement (Dollar) has replaced such prior benchmark rate pursuant to Section 2.20(a); provided, further, that, in the event that the rate resulting from the sum of any Benchmark (Dollar) plus, if applicable, the Benchmark Replacement Adjustment shall be less than the Floor, such rate shall be deemed to be the Floor for purposes of this Agreement.
"Benchmark Replacement (Dollar)" means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent on the applicable Benchmark Replacement Date:
If at any time the Benchmark Replacement (Dollar) as determined pursuant to clause (1) or (2) of this definition would be less than the Floor, the Benchmark Replacement (Dollar) will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.
"Benchmark Replacement Adjustment" means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or
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negative value or zero), that has been mutually selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated secured financing or securitization transactions relating to the relevant asset class, as applicable at such time.
"Benchmark Replacement Conforming Changes" means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement (Dollar), any technical, administrative or operational changes (including but not limited to changes to the definition of "Business Day," the definition of "Remittance Period," the definition of "U.S. Government Securities Business Day," timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
"Benchmark Replacement Date" means the earliest to occur of the following events with respect to the then-current Benchmark (Dollar):
For the avoidance of doubt, the "Benchmark Replacement Date" will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
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"Benchmark Transition Event" means the occurrence of one or more of the following events with respect to the then-current Benchmark (solely with respect to a Benchmark Replacement (Dollar)):
For the avoidance of doubt, a "Benchmark Transition Event" will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
"Beneficial Ownership Certification" means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
"Beneficial Ownership Regulation" means 31 C.F.R. §1010.230.
"Benefit Plan Investor" means a "benefit plan investor" as defined in Department of Labor regulation 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, and includes an employee benefit plan that is subject to the fiduciary responsibility provisions of Title I of ERISA, a plan that is subject to Section 4975 of the Code, and an entity the underlying assets of which are deemed to include plan assets.
"Borrower" means First Eagle Private Credit Fund SPV, LLC, a Delaware limited liability company, together with its permitted successors and assigns in such capacity.
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"Borrower Certificate of Formation" means the Certificate of Formation of the Borrower, dated June 1, 2023, as amended, modified, supplemented, restated or replaced from time to time.
"Borrower Consent" means the resolutions of the board of trustees of First Eagle Private Credit Fund, which among other things, authorizes the Borrower to execute, deliver and perform this Agreement, dated August 7, 2023, in each case, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Borrower LLC Agreement" means the amended and restated limited liability company agreement of the Borrower, dated September 22, 2023, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Borrowing Base" means, collectively, the Borrowing Base (Aggregate), the Borrowing Base (CAD), the Borrowing Base (EUR), the Borrowing Base (GBP) and the Borrowing Base (AUD).
"Borrowing Base (Aggregate)" means, as of any date of determination, an amount calculated in Dollars (and converted to Dollars, if necessary, by the Servicer using the Spot Rate) equal to the lowest of:
"Borrowing Base (AUD)" means, on any date of determination, an amount calculated in AUD equal to the sum of (i)(a) the product of (x) the lower of (1) the Weighted Average Advance Rate for all Eligible Loan Assets denominated in AUD as of such date and (2) the Maximum Portfolio Advance Rate as of such date, multiplied by (y) the Aggregate Adjusted Borrowing Value of all Eligible Loan Assets denominated in AUD (including any such Eligible Loan Assets to be funded or acquired by Borrower on such date of determination), plus (ii) the Principal Collections and Permitted Investments made with Principal Collections denominated in AUD on deposit in the Collection Account.
"Borrowing Base (CAD)" means, on any date of determination, an amount calculated in CAD equal to the sum of (i)(a) the product of (x) the lower of (1) the Weighted Average
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Advance Rate for all Eligible Loan Assets denominated in CAD as of such date and (2) the Maximum Portfolio Advance Rate as of such date, multiplied by (y) the Aggregate Adjusted Borrowing Value of all Eligible Loan Assets denominated in CAD (including any such Eligible Loan Assets to be funded or acquired by Borrower on such date of determination), plus (ii) the Principal Collections and Permitted Investments made with Principal Collections denominated in CAD on deposit in the Collection Account.
"Borrowing Base (EUR)" means, on any date of determination, an amount calculated in EUR equal to the sum of (i)(a) the product of (x) the lower of (1) the Weighted Average Advance Rate for all Eligible Loan Assets denominated in EUR as of such date and (2) the Maximum Portfolio Advance Rate as of such date, multiplied by (y) the Aggregate Adjusted Borrowing Value of all Eligible Loan Assets denominated in EUR (including any such Eligible Loan Assets to be funded or acquired by Borrower on such date of determination), plus (ii) the Principal Collections and Permitted Investments made with Principal Collections denominated in EUR on deposit in the Collection Account.
"Borrowing Base (GBP)" means, on any date of determination, an amount calculated in GBP equal to the sum of (i)(a) the product of (x) the lower of (1) the Weighted Average Advance Rate for all Eligible Loan Assets denominated in GBP as of such date and (2) the Maximum Portfolio Advance Rate as of such date, multiplied by (y) the Aggregate Adjusted Borrowing Value of all Eligible Loan Assets denominated in GBP (including any such Eligible Loan Assets to be funded or acquired by Borrower on such date of determination), plus (ii) the Principal Collections and Permitted Investments made with Principal Collections denominated in GBP on deposit in the Collection Account.
"Borrowing Base Certificate" means a certificate prepared by the Servicer setting forth the calculation of the Borrowing Base as of the applicable date of determination, substantially in the form of Exhibit B hereto.
"Borrowing Base Deficiency" means a condition occurring on any day on which the Borrowing Base Test (Aggregate) is failing.
"Borrowing Base Test" means a test that will be satisfied at any time if (i) Advances Outstanding (converting all amounts not denominated in Dollars to Dollars at the Spot Rate) are less than or equal to the Borrowing Base (Aggregate) at such time, (ii) if Advances Outstanding which are denominated in AUD are less than or equal to the Borrowing Base (AUD) at such time, (iii) if Advances Outstanding which are denominated in CAD are less than or equal to the Borrowing Base (CAD) at such time, (iv) if Advances Outstanding which are denominated in EUR are less than or equal to the Borrowing Base (EUR) at such time or (v) if Advances Outstanding which are denominated in GBP are less than or equal to the Borrowing Base (GBP) at such time.
"Borrowing Base Test (Aggregate)" means a test that will be satisfied at any time if Advances Outstanding (converting all amounts not denominated in Dollars to Dollars at the Spot Rate) are less than or equal to the Borrowing Base (Aggregate) at such time.
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"Breakage Fee" means, for Advances Outstanding which are repaid (in whole or in part) on any date other than a Payment Date, the breakage costs (other than lost profits), if any, related to such repayment, representing a Lender's loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable, and using any reasonable attribution or averaging methods which the Lender deems appropriate and practical, it hereby being understood that the amount of any loss, costs or expense payable by the Borrower to any Lender as Breakage Fee shall be determined in the respective Lender's reasonable discretion and shall be conclusive absent manifest error.
"Bridge Loan" means any loan that (a) is unsecured and incurred in connection with a merger, acquisition, consolidation or sale of all or substantially all of the assets of a Person or similar transaction and (b) by its terms, is required to be repaid within one (1) year of the incurrence thereof with proceeds from additional borrowings or other refinancings.
"Broadly Syndicated Loan" means any Loan Asset (other than an Asset Based Loan) as of the related Cut-Off Date that is a syndicated commercial loan with (a) an original tranche size of
$250,000,000 or greater (without consideration of any reductions thereof from scheduled or unscheduled amortization payments), (b) EBITDA of $75,000,000 or greater, (c) an issuer credit rating by S&P or a corporate family rating by Xxxxx'x and (d) Same Day Pricing with a minimum quote depth of at least three (3) or as otherwise designated by the Administrative Agent on a name-by-name basis in the applicable Approval Notice.
"Business Day" means a day of the year other than (a) Saturday or a Sunday or (b) any other day on which commercial banks in New York, New York or the city in which the offices of the Collateral Agent (or, in connection with any action required of the Collateral Custodian, the city in which the offices of the Collateral Custodian are located)are authorized or required by applicable law, regulation or executive order to close; provided that, if any determination of a Business Day shall relate to an Advance bearing interest at the Benchmark (other than the Benchmark (Dollar)), the term "Business Day" shall also exclude any day on which banks are not open for dealings (i) in Euro deposits, in the Euro-zone interbank market in the case of Euro Advances, (ii) in CAD deposits, in Toronto, Canada in the case of CAD Advances, (iii) in AUD deposits, in Sydney, Australia in the case of AUD Advances or (iv) in GBP deposits, in London, United Kingdom in the case of GBP Advances and with respect to the calculation of Daily Simply XXXXX.
"CAD" means, on any date of determination, the lawful currency of Canada on such date. "CAD Advance" means an Advance denominated in CAD.
"Canadian Available Tenor" means, as of any date of determination and with respect to the then-current Canadian Benchmark, as applicable, (x) if the then-current Canadian Benchmark is a term rate, any tenor for such Canadian Benchmark that is or may be used for determining the length of a Remittance Period or (y) otherwise, any payment period for Yield calculated with reference to such Canadian Benchmark, as applicable, pursuant to this Agreement as of such date.
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"Canadian Benchmark" means, initially, the Adjusted Term XXXXX; provided that if a Canadian Benchmark Transition Event has occurred with respect to the Term XXXXX Reference Rate or the then-current Canadian Benchmark, then "Canadian Benchmark" means the applicable Canadian Benchmark Replacement to the extent that such Canadian Benchmark Replacement has replaced such prior Canadian Benchmark pursuant to Section 2.20(e); provided, further, that, in the event that the rate resulting from the sum of any Canadian Benchmark plus, if applicable, the Canadian Benchmark Replacement Adjustment shall be less than the Floor, such rate shall be deemed to be the Floor for purposes of this Agreement.
"Canadian Benchmark Conforming Changes" means, with respect to either the use or administration of Adjusted Term XXXXX or the use, administration, adoption or implementation of any Canadian Benchmark Replacement, any technical, administrative or operational changes (including but not limited to changes to the definition of "Business Day," the definition of "Remittance Period," timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such Canadian Benchmark Replacement or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such Canadian Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
"Canadian Benchmark Replacement" means, with respect to any Canadian Benchmark Transition Event:
If the Canadian Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Canadian Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.
"Canadian Benchmark Replacement Adjustment" means, with respect to any replacement of the then-current Canadian Benchmark with a Canadian Unadjusted Benchmark Replacement,
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the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method of calculating or determining such spread adjustment, for the replacement of such Canadian Benchmark with the applicable Canadian Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Canadian Benchmark with the applicable Canadian Unadjusted Benchmark Replacement for CAD denominated syndicated credit facilities at such time.
"Canadian Benchmark Replacement Date" means a date and time determined by the Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Canadian Benchmark:
For the avoidance of doubt, the "Canadian Benchmark Replacement Date" will be deemed to have occurred in the case of clause (a) or (b) with respect to any Canadian Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Canadian Available Tenors of such Canadian Benchmark (or the published component used in the calculation thereof).
"Canadian Benchmark Transition Event" means the occurrence of one or more of the following events with respect to the then-current Canadian Benchmark:
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administrator that will continue to provide any Canadian Available Tenor of such Canadian Benchmark (or such component thereof);
For the avoidance of doubt, a "Canadian Benchmark Transition Event" will be deemed to have occurred with respect to any Canadian Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Canadian Available Tenor of such Canadian Benchmark (or the published component used in the calculation thereof).
"Canadian Unadjusted Benchmark Replacement" means the applicable Canadian Benchmark Replacement excluding the related Canadian Benchmark Replacement Adjustment.
"Capital Lease Obligations" means, with respect to any entity, the obligations of such entity to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such entity under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
"Cash Interest Coverage Ratio" means, with respect to any Loan Asset (other than an Asset Based Loan or Recurring Revenue Loan) for any period, the meaning of "Interest Coverage Ratio" or any comparable definition in the Underlying Instruments for such Loan Asset, and in the case that "Interest Coverage Ratio" or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) EBITDA for the applicable test period, to (b) cash interest for the applicable test period, as calculated by the Servicer in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the related Underlying Instruments.
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"Change in Law" 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 notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives promulgated thereunder or issued in connection therewith and (y) all law, requests, rules, regulations, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a "Change in Law," regardless of the date enacted, adopted or issued.
"Change of Control" means an event that shall be deemed to have occurred if any of the following occur:
"Closing Date" means September 22, 2023.
"Code" means the United States Internal Revenue Code of 1986, as amended. "Collateral" means all right, title, and interest (whether now owned or hereafter acquired
or arising, and wherever located) of the Borrower in, to and under all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions, or other property of the Borrower, including, all right, title and interest of the Borrower in the following (in each case excluding the Retained Interest and the Excluded Amounts):
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above;
funds on deposit in the Controlled Accounts;
For the avoidance of doubt, the term "Collateral" shall, for all purposes of this Agreement, be deemed to include any Loan Asset acquired directly by the Borrower from a third party in a transaction underwritten by the Transferor or any transaction in which the Borrower is the designee of the Transferor under the instruments of conveyance relating to the applicable Loan Asset.
"Collateral Agent" means U.S. Bank Trust Company, National Association, not in its individual capacity, but solely as collateral agent pursuant to the terms of this Agreement, together with its successor and assigns in such capacity.
"Collateral Agent and Collateral Custodian Fee Letter" means the fee letter between the Collateral Agent, the Collateral Custodian, the Account Bank and the Borrower, as such letter may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Collateral Agent Expenses" means the expenses set forth in the Collateral Agent and Collateral Custodian Fee Letter and any other reasonable and documented out-of-pocket accrued and unpaid expenses (including attorneys' fees, costs and expenses) and indemnity amounts payable by the Borrower to the Collateral Agent under the Transaction Documents.
"Collateral Agent Fees" means the fees due to the Collateral Agent pursuant to the Collateral Agent and Collateral Custodian Fee Letter.
"Collateral Agent Termination Notice" has the meaning assigned to that term in Section
10.05.
"Collateral Custodian" means U.S. Bank National Association, not in its individual
capacity, but solely as collateral custodian pursuant to the terms of this Agreement, together with its successors and assigns in such capacity.
"Collateral Custodian Expenses" means the expenses set forth in the Collateral Agent and Collateral Custodian Fee Letter and any other reasonable and documented out-of-pocket accrued
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and unpaid expenses (including attorneys' fees, costs and expenses) and indemnity amounts payable by the Borrower to the Collateral Custodian under the Transaction Documents.
"Collateral Custodian Fees" means the fees due to the Collateral Custodian pursuant to the Collateral Agent and Collateral Custodian Fee Letter.
"Collateral Custodian Termination Notice" has the meaning assigned to that term in Section 11.05.
"Collateral Quality Tests" means (a) the Weighted Average Spread Test, (b) the Weighted Average Life Test and (c) the Diversity Test.
"Collection Account" means a securities account (comprised of the Interest Collection Subaccounts and the Principal Collection Subaccounts for each Eligible Currency) in the name of the Borrower subject to the lien and control of the Collateral Agent for the benefit of the Secured Parties, and each subaccount that may be established from time to time; provided that the funds deposited therein (including any interest and earnings thereon) from time to time shall constitute the property and assets of the Borrower, and the Borrower shall be solely liable for any Taxes payable with respect to the Collection Account.
"Collection Date" means the date on which the aggregate outstanding principal amount of the Advances Outstanding have been repaid in full and all Yield and Fees and all other Obligations (other than unmatured contingent obligations for which no claim has been made) have been paid in full, and the Borrower shall have no further right to request any additional Advances.
"Commitment" means with respect to each Lender, (i) during the Revolving Period, the amount set forth opposite such Xxxxxx's name on Annex A hereto (as such amount may be revised from time to time) or the amount set forth as such Xxxxxx's "Commitment" on the Assignment and Acceptance relating to such Lender, as applicable, and (ii) during the Amortization Period, such Lender's Pro Rata Share of the aggregate Advances Outstanding, in each case, as such amount may be increased or reduced pursuant to Section 2.16.
"Commitment Termination Date" means the earliest to occur of (a) the date that is three
(3) years following the Closing Date, (b) the occurrence of the Facility Maturity Date pursuant to clause (c) of the definition thereof and (c) the Business Day designated by the Borrower to the Lenders pursuant to Section 2.16(b) to terminate this Agreement.
"Concentration Denominator" means, on any date of determination, the sum of the Outstanding Balances of all Eligible Loan Assets included as part of the Collateral, plus amounts on deposit in the Principal Collection Subaccount (in each case as of such date); provided, that during the Ramp-Up Period only, the Concentration Denominator shall be the greater of (a) the foregoing amount and (b) the Target Portfolio Amount.
"Concentration Limitations" means, for the purposes of determining the Excess Concentration Amount:
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"Connection Income Taxes" means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
"Constituent Documents" means in respect of any Person, the certificate or articles of formation, incorporation or organization, the limited liability company agreement, operating agreement, partnership agreement, joint venture agreement or other applicable agreement of formation or organization (or equivalent or comparable constituent documents), articles of association and other organizational documents and by-laws and any certificate of incorporation, certificate of formation, certificate of limited partnership and other agreement, similar instrument filed or made in connection with its formation or organization, in each case, as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof. For the avoidance of doubt, the "Constituent Documents" of the Borrower include, the Borrower Consent, the Borrower Certificate of Formation and the Borrower LLC Agreement.
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"Control Agreement" means that certain Control Agreement, dated as of the Closing Date, among the Borrower, the Servicer, the Account Bank, the Administrative Agent and the Collateral Agent, which agreement relates to the Controlled Accounts, as such agreement may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Controlled Accounts" means the Payment Account, the Collection Account and the Unfunded Exposure Account.
"XXXXX" means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
"Corresponding Tenor" with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
"Cov-Lite Loan Asset" means a Loan Asset that is not subject to any Maintenance Covenants; provided that a Loan Asset shall not constitute a Cov-Lite Loan Asset if the Underlying Instruments contain either a cross-default or cross-acceleration provision to, or such Loan Asset is pari passu with another loan of the Obligor that requires the Obligor to comply with one or more Maintenance Covenants.
"Credit Risk Loan" means a Loan Asset that is not a Defaulted Loan but which has, in the Borrower's or the Servicer's reasonable judgment (exercised in accordance with the Servicing Standard), a significant risk of declining in credit quality and, with lapse of time, becoming a Defaulted Loan.
"Cut-Off Date" means, with respect to each Loan Asset (or any portion thereof), the date such Loan Asset (or any portion thereof) is committed to be acquired by the Borrower and, in the case of any Delayed Draw Loan Asset or Revolving Loan, irrespective of the dates or numbers of draws thereunder subsequent to the date such Loan Asset is committed to be acquired by the Borrower.
"Daily Compounded XXXXX" means, for any day, XXXXX with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by the Administrative Agent in accordance with the methodology and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded XXXXX for business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion; provided, further, that if the administrator has not provided or published CORRA and a Canadian Benchmark Replacement Date with respect to XXXXX has not occurred, then, in respect of any day for which XXXXX is required, references to XXXXX will be deemed to be references to the last provided or published XXXXX.
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"Daily Compounded XXXXX Adjustment" means a percentage equal to 0.32138% (32.138 basis points) per annum.
"Daily Simple SOFR" means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining "Daily Simple SOFR" for business loans at such times; provided that, if the Administrative Agent decides that any such convention is not administratively feasible, then the Administrative Agent may establish another convention in its reasonable discretion.
"Daily Simple XXXXX" means, for any day (a "XXXXX Xxxx Xxx"), a rate per annum equal to the sum of (i) XXXXX for the day (such day, a "XXXXX Determination Day") that is five
(5) Business Days prior to (x) if such XXXXX Xxxx Day is a Business Day, such XXXXX Xxxx Xxx or (y) if such XXXXX Xxxx Xxx is not a Business Day, the Business Day immediately preceding such XXXXX Xxxx Xxx, in each case, as such XXXXX is published by the XXXXX Administrator on the XXXXX Administrator's Website by 12:00 p.m. (London, United Kingdom time) and (ii) 0.0326%. If by 5:00 p.m. (London, United Kingdom time) on the second (2nd) Business Day immediately following the XXXXX Determination Day, XXXXX in respect of such XXXXX Determination Day has not been published on the XXXXX Administrator's Website and a XXXXX Replacement Date has not occurred, then the XXXXX for such XXXXX Determination Day will be the XXXXX as published in respect of the first (1st) preceding Business Day for which such XXXXX was published on the XXXXX Administrator's Website; provided that any XXXXX determined pursuant to this sentence shall be utilized for purposes of calculating Daily Simple XXXXX for no more than three (3) consecutive XXXXX Rate Days; provided, further, that any calculation of Daily Simple XXXXX shall be rounded to four decimal places and if that rate is less than zero, the Daily Simple XXXXX shall be deemed to be zero. Any change in Daily Simple XXXXX due to a change in the XXXXX shall be effective from and including the effective date of such change in the XXXXX without notice to the Borrower. Daily Simple XXXXX shall always be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
"Debt-to-Recurring-Revenue Ratio" means, with respect to any Loan Asset for any period, the meaning of "Debt-to-Recurring Revenue Ratio" or any comparable definition in the Underlying Instruments for each Loan Asset, and in any case that "Debt-to-Recurring Revenue Ratio" or such comparable definition is not defined in such Underlying Instruments, the ratio of
"Defaulted Loan" means any Loan Asset as to which any one of the following events has occurred:
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"Defaulting Lender" means any Lender that: (i) has failed to fund any of its obligations to make Advances within two (2) Business Days following the applicable Advance Date, (ii) has notified the Administrative Agent or the Borrower that it does not intend to comply with such
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funding obligations or has made a public statement to that effect with respect to such funding obligations hereunder or under other agreements in which it commits to extend credit, (iii) has, for two (2) or more Business Days, failed, in good faith, to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its funding obligations hereunder, (iv) has, or has a direct or indirect parent company that has, become subject to a Bankruptcy Event or (v) has become the subject of a Bail-In Action. Any determination that a Lender is a Defaulting Lender under clauses (i) through
(iv) above will be made by the Administrative Agent in its reasonable discretion.
"Delayed Draw Loan Asset" means a Loan Asset that is fully committed on the initial funding date of such Loan Asset and is required to be fully funded in one or more installments on draw dates, but which does not permit the re-borrowing of any amounts previously repaid by the Obligor; provided that any such Loan Asset will no longer be a Delayed Draw Loan Asset once all commitments by the Borrower to make advances to the related Obligor expire or are terminated or reduced to zero.
"Determination Date" means, with respect to each Payment Date and each Reporting Date, the last Business Day of the calendar month immediately preceding each such Payment Date and each such Reporting Date (or, in the case of a Payment Date designated in accordance with the definition thereof, the fifth Business Day immediately preceding such Payment Date).
"DIP Loan" means any Loan Asset (a) with respect to which the related Obligor is a debtor-in-possession as defined under the Bankruptcy Code, (b) which has the priority allowed pursuant to Section 364 of the Bankruptcy Code and (c) the terms of which have been approved by a court of competent jurisdiction.
"Disbursement Request" means a disbursement request from the Borrower to the Administrative Agent and the Collateral Agent in the form attached hereto as Exhibit C in connection with a disbursement request from the Unfunded Exposure Account in accordance with Section 2.04(d) or a disbursement request from the Principal Collection Subaccount in accordance with Section 2.18, as applicable.
"Discretionary Sale" has the meaning assigned to that term in Section 2.07(a). "Disqualified Institution" means any financial institution, fund or Person or other
investment platform (other than a national or regional banking institution) that is engaged in the business of originating, acquiring, managing or investing in middle-market loans or asset based loans which, for the avoidance of doubt, includes the individual business units of such financial institution, fund or Person or investment platform that specialize in the business of originating, acquiring, managing or investing in middle-market loans or asset based loans as of such date.
"Diversity Score" means, as of any day, a single number that indicates collateral concentration in terms of both issuer and industry concentration, calculated as set forth in Schedule V hereto, as such Schedule V may be updated at the mutual agreement of the Borrower and the Administrative Agent in their sole discretions to reflect any revisions to criteria published by Moody's.
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"Diversity Test" means a test that will be satisfied on any date of determination after the Ramp-Up Period if the Diversity Score is greater than or equal to 15.0.
"Dollar Equivalent" means, (a) for any amount denominated in Dollars, such amount and
"Dollars" means, and the conventional "$" signifies, the lawful currency of the United States of America.
"EBITDA" means, with respect to any period and any Loan Asset (other than an Asset Based Loan or a Recurring Revenue Loan), the meaning of "EBITDA," "Adjusted EBITDA" or any comparable definition in the Underlying Instruments for such Loan Asset (together with all add-backs and exclusions as designated in such Underlying Instruments) (provided that if such Underlying Instruments include terms for both "EBITDA" and "Adjusted EBITDA", reference herein to "EBITDA" shall refer to "Adjusted EBITDA" under such Underlying Instruments), and in any case that "EBITDA," "Adjusted EBITDA" or such comparable definition is not defined in such Underlying Instruments, an amount, for the principal Obligor on such Loan Asset and any of its parents or Subsidiaries that are obligated pursuant to the Underlying Instruments for such Loan Asset (determined on a consolidated basis without duplication in accordance with GAAP) equal to net income from continuing operations for such period plus (a) cash interest expense, (b) income taxes, (c) depreciation and amortization for such 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), to the extent not otherwise included in clause (c) above, other non-cash charges and organization costs, (e) extraordinary losses in accordance with GAAP, and (f) any other item the Borrower and the Administrative Agent mutually deem to be appropriate.
"EEA Financial Institution" means (a) any credit institution or investment firm 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 financial 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.
"EEA Member Country" means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
"EEA Resolution Authority" 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.
"Effective Spread" means, as of any date of determination, with respect to any (i) floating rate Eligible Loan Asset, the current per annum rate at which it pays interest minus the
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Benchmark applicable during the Remittance Period in which such date of determination occurs and (ii) fixed rate Eligible Loan Asset, the interest rate for such Eligible Loan Asset minus the Benchmark applicable during the Remittance Period in which such date of determination occurs; provided, that, in each case, (a) with respect to any unfunded commitment of any Delayed Draw Loan Asset or Revolving Loan, as applicable, the Effective Spread means the commitment fee payable with respect to such unfunded commitment and (b) with respect to the funded portion of any commitment under any Delayed Draw Loan Asset or Revolving Loan, as applicable, the Effective Spread means the current per annum rate at which it pays interest minus the Benchmark applicable during the Remittance Period in which such date of determination occurs.
"Eligibility Criteria" means the criteria set forth in Schedule II hereto.
"Eligible Country" means the criteria set forth in Schedule II hereto.
"Eligible Currency" means AUDs, CADs, Dollars, Euros and GBPs.
"Eligible Currency Accounts" means, collectively, the Interest Collection Subaccount, the Principal Collection Subaccount and the Unfunded Exposure Account designated for each Eligible Currency.
"Eligible Loan Asset" means, as of any date of determination, a Loan Asset in respect of which each of the representations and warranties contained in Section 4.02 and Schedule II hereto (after giving effect to the first proviso set forth in the lead-in paragraph of Schedule II) is true and correct as of such date.
"Environmental Laws" means any and all laws, rules, orders, regulations, statutes, ordinances, guidelines, codes, decrees, or other legally binding requirements (including, without limitation, principles of common law) of any Governmental Authority, regulating, relating to or imposing liability or standards of conduct concerning pollution, the preservation or protection of the environment, natural resources or human health (including employee health and safety), or the generation, manufacture, use, labeling, treatment, storage, handling, transportation or release of, or exposure to, Materials of Environmental Concern, as has been, is now, or may at any time hereafter be, in effect.
"Equity Cure Notice" has the meaning assigned to that term in Section 2.06(c).
"Equity Cushion" means, with respect to any Obligor and as calculated by the Servicer, the pro forma ratio of (a) the equity of such Obligor to (b) the total capitalization of such Obligor, determined as of the related Cut-Off Date.
"Equity Interests" means, with respect to any Person, its equity ownership interests, its common stock and any other capital stock or other equity ownership units of such Person authorized from time to time, and any other shares, options, interests, participations or other equivalents (however designated) of or in such Person, whether voting or nonvoting, including common stock, options, warrants, preferred stock, phantom stock, membership units (common or preferred), stock appreciation rights, membership unit appreciation rights, convertible notes or
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debentures, stock purchase rights, membership unit purchase rights and all securities convertible, exercisable or exchangeable, in whole or in part, into any one or more of the foregoing.
"Equity Security" means (a) any equity security or any other security that is not eligible for purchase by the Borrower as an Eligible Loan Asset, (b) any security purchased as part of a "unit" with an Eligible Loan Asset and that itself is not eligible for purchase by the Borrower as an Eligible Loan Asset, and (c) any obligation that, at the time of commitment to acquire such obligation, was eligible for purchase by the Borrower as an Eligible Loan Asset but that, as of any subsequent date of determination, no longer is eligible for purchase by the Borrower as an Eligible Loan Asset, for so long as such obligation fails to satisfy such requirements.
"ERISA" means the United States Employee Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means (a) any corporation that is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the relevant Person,
(b) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with that Person, or (c) solely for purposes of Section 302 of ERISA and Section 412 of the Code, a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as, or that otherwise is aggregated under Section 414(o) of the Code with, that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above.
"ERISA Event" means (a) with respect to a Pension Plan, any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived; (b) a withdrawal by the Borrower or any of its ERISA Affiliates from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as a termination under Section 4062(e) of ERISA; (c) the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived, with respect to a Pension Plan; (d) the failure by the Borrower or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (e) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to a complete or partial withdrawal by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan, written notification of the Borrower or any of its ERISA Affiliates concerning the imposition of any withdrawal liability, as such term is defined in Part I of Subtitle E of Title IV of ERISA, as a result of a complete or partial withdrawal from a Multiemployer Plan or written notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA or in "endangered" or "critical" status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or Section 4041A of ERISA, or the receipt by the Borrower or any of its ERISA Affiliates from the PBGC of any notice relating to the intention to terminate a Pension Plan or Multiemployer Plan;
(h) the imposition of any liability under Title IV of ERISA with respect to the termination of any
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Pension Plan or Multiemployer Plan, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any of its ERISA Affiliates; or (i) the occurrence of a non-exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) which could result in liability to the Borrower or any of its ERISA Affiliates.
"EU Bail-In Legislation Schedule" means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
"EURIBOR" means, for any day with respect to any Euro Advance (or portion thereof) for any day during a Remittance Period, the rate per annum (carried out to the fifth decimal place) equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of the Reuters Screen (or any applicable successor page) at approximately 11:00 a.m., London time, on the EURIBOR Determination Date for such Remittance Period that displays an average European Money Markets Institute Settlement Rate (such page currently being EURIBOR01) for deposits in Euros with a term equivalent to three months; provided that if such rate is not available at any such time for any reason, then "EURIBOR" with respect to any Advance shall be the rate at which Euro deposits of €5,000,000 and for a three-month maturity are offered by the principal London office of the Administrative Agent or the principal London office of any bank reasonably selected by the Administrative Agent in immediately available funds in the Euro-zone interbank market at approximately 11:00 a.m., London time, on the EURIBOR Determination Date; provided, further, that, in the event that the rate as so determined above shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. XXXXXXX shall always be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
"EURIBOR Determination Date" means, with respect to each Remittance Period, the day that is two (2) Business Days prior to the first day of such Remittance Period.
"Euro" and "EUR" means the lawful currency of the Member States of the European Union that have adopted and retain the single currency in accordance with the treaty establishing the European Community, as amended from time to time; provided that if any member state or states ceases to have such single currency as its lawful currency (such member state(s) being the "Exiting State(s)"), such term shall mean the single currency adopted and retained as the lawful currency of the remaining member states and shall not include any successor currency introduced by the Exiting State(s).
"Euro Advance" means an Advance denominated in Euro.
"Event of Default" has the meaning assigned to that term in Section 7.01.
"Excepted Persons" has the meaning assigned to that term in Section 12.12(a).
"Excess Concentration Amount" means, as of any date of determination, with respect to any Eligible Loan Asset included in the Collateral, the amount by which the Adjusted Borrowing Value (without giving effect to clause (ii) of the second sentence of the definition thereof) of such Eligible Loan Asset exceeds any applicable Concentration Limitations, to be calculated by the Servicer without duplication, after giving effect to any sales, purchases or substitutions of
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Loan Assets as of such date; provided that with respect to any Eligible Loan Asset or portion thereof, if more than one Concentration Limitation would be exceeded, the Concentration Limitation that would result in the highest Excess Concentration Amount shall be used to determine the Excess Concentration Amount.
"Exchange Act" means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Excluded Amounts" means (a) any amount received in the Collection Account with respect to any Loan Asset included as part of the Collateral, which amount is attributable to the payment of any Tax on such Loan Asset or on any Related Collateral and (b) any amount received in the Collection Account or other Controlled Account representing (i) a reimbursement of insurance premiums, (ii) any escrows relating to Taxes, insurance and other amounts in connection with Loan Assets which are held in an escrow account for the benefit of the Obligor and the secured party pursuant to escrow arrangements under the Underlying Instruments, (iii) amounts received in the Collection Account with respect to any Loan Asset retransferred or substituted for upon the occurrence of a Warranty Breach Event or that is otherwise replaced by a Substitute Eligible Loan Asset, or that is otherwise sold or transferred by the Borrower pursuant to Section 2.07, to the extent such amount is attributable to a time after the effective date of such replacement or sale, (iv) any interest accruing on a Loan Asset prior to the related Cut-Off Date that was not purchased by the Borrower and is for the account of the Person from whom the Borrower purchased such Loan Asset, and (v) amounts deposited into the Collection Account manifestly in error.
"Excluded Taxes" means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by the Recipient's net income or net profits (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) by the jurisdiction (or any political subdivision thereof) under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or (ii) as the result of any other present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient 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 Transaction Document, or sold or assigned an interest in any Transaction Document) ("Other Connection Taxes"), (b) in the case of any Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a law in effect on the date on which (i) such Lender becomes a party hereto or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.11, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office,
"Facility Amount" means the aggregate Commitments as then in effect, which on the Closing Date shall be $350,000,000, as such amount may be reduced pursuant to Section
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2.17(b); provided that, at all times during the Amortization Period, the Facility Amount shall mean the aggregate Advances Outstanding at such time.
"Facility Maturity Date" means the earliest of (a) the Business Day designated by the Borrower to the Lenders pursuant to Section 2.16(b) to terminate this Agreement, (b) the Stated Maturity or (c) the date on which the Facility Maturity Date is declared (or is deemed to have occurred automatically) pursuant to Section 7.01.
"FATCA" means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor versions of Sections 1471 through 1474 of the Code that are substantively comparable and not materially more onerous to comply with), and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code (or any amended or successor version described above).
"Federal Reserve Bank of New York's Website" means the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.
"Fees" means (a) the Unused Fee and (b) the fees payable to each Lender pursuant to the terms of any Lender Fee Letter.
"Financial Asset" has the meaning specified in Section 8-102(a)(9) of the UCC. "Financial Covenant Test": means a test that will be tested on each date that the
Transferor delivers the financial statements of the Transferor to the Administrative Agent in accordance with Section 6.08(d) and will be determined as of the last day of the related fiscal quarter of the Transferor and will be satisfied on any such date if:
(i) Unrestricted Cash plus (ii) Unpledged Capital Commitments plus (iii) undrawn commitments under credit facilities, in an aggregate amount in excess of $15,000,000;
"Financial Sponsor" means any Person, including any Subsidiary of such Person, whose principal business activity is acquiring, holding, and selling investments (including controlling interests) in otherwise unrelated companies that each are distinct legal entities with separate management, books and records and bank accounts, whose operations are not integrated with one another and whose financial condition and creditworthiness are independent of the other companies so owned by such Person.
"First Lien Loan" means any Loan Asset (a) that is secured by a valid and perfected first priority Lien on substantially all of the Obligor's assets constituting Related Collateral, subject to any Permitted Working Capital Liens, any super senior Revolving Loan permitted pursuant to the proviso at the end of this definition and any expressly permitted Liens under the Underlying
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Instrument for such Loan Asset or such comparable definition if "permitted liens" is not defined therein, (b) that provides that the payment obligation of the Obligor on such Loan Asset is either senior to, or pari passu with, and is not (and cannot by its terms become) subordinate in right of payment to all other Indebtedness of such Obligor (other than Indebtedness related to a Permitted Working Capital Lien or a super senior Revolving Loan permitted pursuant to the proviso at the end of this definition), (c) for which Liens on the Related Collateral securing any other outstanding Indebtedness of the Obligor (excluding any Permitted Working Capital Liens, Liens securing a super senior Revolving Loan permitted pursuant to the proviso at the end of this definition and expressly permitted Xxxxx described in clause (a) above but including Liens securing Second Lien Loans) is expressly subject to and contractually or structurally subordinate to the priority Liens securing such First Lien Loan, (d) that the Servicer determines in accordance with the Servicing Standard that the value of the Related Collateral securing the Loan Asset (or the enterprise value of the related Obligors) on or about the time of origination equals or exceeds the Outstanding Balance of the Loan Asset plus the aggregate outstanding balances of all other Indebtedness of equal seniority secured by the same Related Collateral, (e) for which the Senior Leverage Ratio as of the Cut-Off Date is less than 4.75:1.00, and (f) that is not a Second Lien Loan, Unitranche Loan, Asset Based Loan or FLLO Loan; provided that with respect to any Loan Asset that would otherwise constitute a First Lien Loan but for being subordinate to a super senior Revolving Loan and the ratio of the lower of (1) the committed amount or (2) if at any time the borrowing base for the last twelve (12) months is available, then the average borrowing base for the last twelve (12) months, of such super senior Revolving Loan to the EBITDA of the Obligor is less than or equal to 1.00:1.00 as of the Cut-Off Date, such Loan Asset may be designated as a First Lien Loan at the sole discretion of the Administrative Agent as of the Cut-Off Date (and, should such designation not be made by the Administrative Agent, at any time after the borrowing base for the last twelve (12) months that was not previously available becomes available, the Borrower or the Servicer may request that the Administrative Agent redesignate such Loan Asset as a First Lien Loan as of the Cut-Off Date). For clarity, Asset Based Loans shall not be considered to be First Lien Loans for any purpose hereunder.
"FLLO Loan" means any Loan Asset that satisfies all of the requirements set forth in the definition of "First Lien Loan" except that, at any time prior to and/or after an event of default under the Underlying Instrument, such Loan Asset will be paid after one or more tranches of First Lien Loans issued by the Obligor have been paid in full in accordance with a specified waterfall or other priority of payments as specified in the Underlying Instrument, an agreement among lenders or other applicable agreement; provided, that a Loan Asset shall not be a FLLO Loan as a result of being subordinate to a super senior Revolving Loan and the ratio of the lower of (1) the committed amount or (2) if at any time the borrowing base for the last twelve (12) months is available, then the average borrowing base for the last twelve (12) months, of such super senior Revolving Loan to the EBITDA of the Obligor is less than or equal to 1.00:1.00 as of the Cut-Off Date, if such Loan Asset is designated as a First Lien Loan or Unitranche Loan in the sole discretion of the Administrative Agent pursuant to the proviso in the definition of "First Lien Loan" or "Unitranche Loan". For clarity, Asset Based Loans shall not be considered to be FLLO Loans for any purpose hereunder.
"Floor" means, with respect to any Benchmark under this Agreement, a benchmark rate floor of zero percent.
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"Fully Funded LTV" means, with respect to any Eligible Loan Asset that is an Asset Based Loan as of any date of determination, (i) the maximum amount that can be drawn under the borrowing base of such Eligible Loan Asset divided by (ii) the Appraised Value for such Eligible Loan Assets.
"GAAP" means generally accepted accounting principles as in effect from time to time in the United States.
"GBP" means the lawful currency of the United Kingdom.
"GBP Advance" means an Advance denominated in GBP.
"Governmental Authority" means, with respect to any Person, any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person.
"Governmental Plan" has the meaning assigned to that term in Section 4.01(x).
"Grant" or "Granted" means to grant, bargain, sell, convey, assign, transfer, mortgage, pledge, create and grant a security interest in and right of setoff against, deposit, set over and confirm. A Grant of the Collateral, or of any other instrument, shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including, the immediate continuing right to claim for, collect, receive and receipt for principal and interest payments in respect of the Collateral, and all other monies payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
"Hague Convention" has the meaning assigned to that term in Section 6.04(e). "Healthcare" means any of the following Industry Classifications: "Health Care
Equipment & Supplies," "Health Care Providers & Services" and "Health Care Technology."
"Increased Costs" means any amounts required to be paid by the Borrower to an Affected Party pursuant to Section 2.10.
"Indebtedness" means:
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which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such entity, whether or not the indebtedness secured thereby has been assumed, (vi) all guarantees by such entity of indebtedness of others, (vii) all Capital Lease Obligations of such entity, (viii) all obligations, contingent or otherwise, of such entity as an account party in respect of letters of credit and letters of guaranty and (ix) all obligations, contingent or otherwise, of such entity in respect of bankers' acceptances; and
"Indemnified Amounts" has the meaning assigned to that term in Section 8.01. "Indemnified Party" has the meaning assigned to that term in Section 8.01.
"Indemnified Taxes" 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 Borrower under any Transaction Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
"Indemnifying Party" has the meaning assigned to that term in Section 8.04. "Independent Manager" means a natural person who, (a) for the five (5)-year period prior
to his or her appointment as Independent Manager, has not been, and during the continuation of his or her service as Independent Manager is not: (i) an employee, director, stockholder, member, manager, partner or officer of the Borrower or any of its respective Affiliates (other than his or her service as an independent manager or independent director of the Borrower or other Affiliates of the Borrower that are structured to be "bankruptcy remote"); (ii) a customer or supplier of the Borrower or any of its Affiliates (other than his or her service as an independent manager or independent director of the Borrower or other Affiliates of the Borrower that are structured to be "bankruptcy remote"); or (iii) any member of the immediate family of a person described in sub-clause (i) or sub-clause (ii) of this clause (a), and (b) has (i) prior experience as an independent manager or independent director for a corporation or limited liability company whose charter documents required the unanimous consent of all independent managers or independent directors thereof before such corporation or limited liability company could consent
39
to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least five (5) years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of secured or securitized structured finance instruments, agreements or securities. Any employee of a Pre-Approved Independent Manager Provider that meets the requirements of clauses (a) and (b) of the preceding sentence shall constitute an Independent Manager.
"Indorsement" has the meaning specified in Section 8-102(a)(11) of the UCC, and "Indorsed" has a corresponding meaning.
"Industry Classification" means any of the industry categories set forth in Schedule VI hereto, including any modifications that may be made thereto or additional categories that may be subsequently established by reference to the Global Industry Classification Standard codes; provided that the Administrative Agent and the Borrower have each provided their respective prior written consent to any such modification or additional category.
"Instrument" has the meaning specified in Section 9-102(a)(47) of the UCC.
"Insurance Policy" means, with respect to any Loan Asset, an insurance policy covering liability and physical damage to, or loss of, the Related Collateral.
"Interest Collection Subaccount" means a sub-account of the Collection Account entitled "Interest Collection Subaccount," into which Interest Collections shall be segregated.
"Interest Collections" means, with respect to any date of determination, without duplication, the sum of:
provided that (x) any amounts received in respect of any Defaulted Loan will constitute Principal Collections (and not Interest Collections) until the aggregate of all collections in respect of such
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Defaulted Loan since it became a Defaulted Loan equals the Outstanding Balance of such Loan Asset at the time it became a Defaulted Loan and (y) Excluded Amounts shall not constitute Interest Collections.
"Investment Adviser" means First Eagle Investment Management, LLC.
"Investment Criteria" means with respect to each Loan Asset acquired by the Borrower, compliance with each of the requirements set forth below:
"I/O Notional Loan" means the interest-only loan made available under this Agreement as described in Section 2.01(c), which is comprised of a notional amount equal to the I/O Notional Loan Amount. For the avoidance of doubt, no holder of any of the I/O Notional Loan shall be deemed to be a "Lender" for the purposes of any voting rights as specified herein.
"I/O Notional Loan Amount" means with respect to each Lender, the amount set forth as such opposite such Xxxxxx's name on Annex A hereto, as such amount may be reduced pursuant to Section 2.16 or any other reduction in the Commitments pursuant to this Agreement.
"I/O Notional Loan Lender Percentage" means, with respect to any Lender, the amount of any percentage that may be assigned to it pursuant to Section 12.04, in each case as set forth more specifically on a schedule that shall be maintained by the Administrative Agent, updated by the Administrative Agent from time to time, and available upon the Borrower's request.
"I/O Rate" has the meaning set forth in the Lender Fee Letter.
"Joinder Supplement" means an agreement among the Borrower, a Xxxxxx and the Administrative Agent in the form of Exhibit M (appropriately completed) delivered in connection with a Person becoming a Lender hereunder after the Closing Date.
"Lender" means (a) Xxxxxx Xxxxxxx so long as it is a Lender hereunder and (b) any Lender, and/or any other Person to whom a Lender assigns any part of its rights and obligations
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under this Agreement and the other Transaction Documents in accordance with the terms of Section 12.04.
"Lender Fee Letter" means each fee letter agreement that shall be entered into by and among the Borrower, the applicable Lender and/or the Administrative Agent in connection with the transactions contemplated by this Agreement, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Leverage Based Valuation Haircut" means, if the Total Leverage Ratio with respect to any Eligible Loan Asset (excluding any Asset Based Loan and any Recurring Revenue Loan) as of the most recent date reported under the Underlying Instrument is greater than 6.50:1.00, the quotient, expressed as a percentage (subject to a maximum of 100 per cent), of:
X1 + (30% x X2) L
where: X1 = the product of the current Advance Rate assigned to such Eligible Loan Asset multiplied by 6.50;
X2 = the lesser of (A) 1.0 (representing the next full turn of leverage of such Eligible Loan Asset) and (B) the difference between the Total Leverage Ratio as of the most recent date reported under the Underlying Instrument and 6.50:1.00; and
L = the Total Leverage Ratio as of the most recent date reported under the Underlying Instrument of such Eligible Loan Asset;
and
"Lien" means any mortgage or deed of trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, claim, preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale, lease or other title retention agreement, sale subject to a repurchase obligation, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing) or the filing of or agreement to give any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction.
"Liquid Credit Loan Asset" means (x) any Senior Secured Bond and (y) any Broadly Syndicated Loan that is, in each case, an Eligible Loan Asset designated as a Liquid Credit Loan Asset by the Administrative Agent in its reasonable discretion in the applicable Approval Notice.
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"Liquidity" means, with respect to any Loan Asset for any period, the meaning of "Liquidity" or any comparable definition in the Underlying Instruments for such Loan Asset, and in any case that "Liquidity" or such comparable definition is not defined in such Underlying Instruments, the sum of (a) the aggregate revolving commitments made to the related Obligor with respect to such Loan Asset as of such date less the amount of any revolving portion of such Loan Asset actually borrowed and outstanding as of such date plus (b) the amount of Unrestricted Cash as of such date.
"Loan Asset" means any commercial loan or Senior Secured Bond acquired by the Borrower, but excluding, as applicable, the Retained Interest and Excluded Amounts; provided, however, that to the extent the Borrower acquires more than one position of a commercial loan or Senior Secured Bond on separate dates, each such position shall be treated as a separate Loan Asset for all purposes hereunder and under each other Transaction Document, unless the Administrative Agent, in its sole discretion, elects to treat such positions as a single Loan Asset; provided, further, that to the extent the Borrower's undrawn commitments under any Delayed Draw Loan Asset or Revolving Loan, as applicable, has been increased after the acquisition of such Delayed Draw Loan Asset or Revolving Loan, as applicable, by the Borrower (whether through an assignment or an amendment of the Underlying Instrument), such increased commitment shall be treated as a separate Delayed Draw Loan Asset or Revolving Loan, as applicable, for all purposes hereunder and under each other Transaction Document, unless the Administrative Agent, in its sole discretion, elects to treat such increased commitment as part of the original Delayed Draw Loan Asset or Revolving Loan, as applicable.
"Loan Asset Checklist" means an electronic or hard copy, as applicable, of a checklist delivered by or on behalf of the Borrower to the Collateral Custodian, for each Loan Asset, of all applicable Required Loan Documents to be included within the respective Loan File.
"Loan Asset Schedule" means the Loan Asset Schedule set forth as Schedule IV hereto identifying the Loan Assets delivered by the Borrower or Servicer to the Collateral Custodian and the Administrative Agent. Each such schedule shall set forth the applicable information specified on Schedule IV, which shall also be provided to the Collateral Custodian in electronic format acceptable to the Collateral Custodian.
"Loan Assignment" has the meaning set forth in the Purchase and Sale Agreement. "Loan File" means, with respect to each Loan Asset, a file containing (a) each of the
documents and items as set forth on the Loan Asset Checklist with respect to such Loan Asset and (b) duly executed originals (to the extent required by the Servicing Standard) and copies of any other Records relating to such Loan Assets and Related Asset pertaining thereto.
"Maintenance Covenant" means, as of any date of determination, a covenant by the Obligor of a Loan Asset to comply with one or more financial covenants (including without limitation any covenant relating to a maximum recurring revenue multiple, borrowing base, asset valuation or similar asset-based requirement or borrowing base test, minimum liquidity test, total net leverage, interest coverage or fixed charge coverage) during each reporting period applicable to such Loan Asset, whether or not any action by, or event relating to, the Obligor occurs after such date of determination; provided that a covenant that otherwise satisfies the definition hereof
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and only applies when amounts are outstanding under the related Loan Asset shall be a Maintenance Covenant.
"Margin Stock" means "margin stock" as such term is defined in Regulation T, U or X of the Federal Reserve Board.
"Market Value" means, with respect to any Liquid Credit Loan Asset on any date of determination, (i) the value determined by the Administrative Agent, in its sole discretion, on such day to be the midpoint of the "bid" and "ask" prices for such Liquid Credit Loan Asset; provided, that in making its determination, the Administrative Agent may consider, in its sole discretion, pricing from Loan Pricing Corp. or IHS Markit Ltd. (or such other pricing service selected by the Administrative Agent) or recent observable trade data or (ii) if such Liquid Credit Loan Asset has Same Day Pricing with a minimum quote depth of less than three (3) or no recent observable trade data is available, then the then-current value determined by the Administrative Agent in its sole discretion; provided, further, that, if such Liquid Credit Loan Asset is an Owned Asset, such Market Value determined pursuant to this clause (ii) shall be consistent with the valuation of such Liquid Credit Loan Asset by the Administrative Agent or its Affiliate, as the case may be, for its own account.
Notwithstanding the foregoing, so long as (a) such Liquid Credit Loan Asset is not a Defaulted Loan or (b) such Liquid Credit Loan Asset is not an Owned Asset, the Borrower may dispute the Market Value of a Liquid Credit Loan Asset by providing actionable bids from three
(3) or more Approved Broker/Dealers not later than 4:00 p.m. on the first Business Day after the date on which the Administrative Agent provides notice to the Borrower of the Market Value of such Liquid Credit Loan Asset, in which case the arithmetic average of such bids shall be treated as the Market Value for such Liquid Credit Loan Asset for such day until the Administrative Agent in good faith has determined that the Market Value of such Liquid Credit Loan Asset has changed.
"Material Adverse Effect" means, with respect to any event or circumstance, a material adverse effect on (a) the business, financial condition, operations or properties of the Transferor, the Servicer or the Borrower, (b) the validity, enforceability or collectability of this Agreement or any other Transaction Document or the validity, enforceability or collectability of the Loan Assets generally or any material portion of the Loan Assets, (c) the rights and remedies of the Collateral Agent, the Collateral Custodian, the Account Bank, the Administrative Agent, any Lender and the Secured Parties with respect to matters arising under this Agreement or any other Transaction Document, (d) the ability of each of the Borrower, the Transferor and the Servicer to perform their respective obligations under this Agreement or any other Transaction Document, or (e) the status, existence, perfection, priority or enforceability of the Collateral Agent's lien on the Collateral.
"Material Modification" means any amendment or waiver of, or modification or supplement with respect to, an Underlying Instrument governing an Eligible Loan Asset executed or effected on or after the Cut-Off Date for such Eligible Loan Asset (or, in the case of clause (c) below, a change to any other Indebtedness of the Obligor, as applicable) which:
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(y) increases the commitment amount of any loan senior with such Loan Asset or (iii) in the case of any Eligible Loan Asset, the Obligor thereof incurs any additional Indebtedness which was not in place as of the Cut-Off Date which is senior to such Eligible Loan Asset (except as permitted under the applicable Underlying Instruments existing on the Cut-Off Date for such Eligible Loan Asset);
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or utilized in the calculation of the "Senior Leverage Ratio," "Cash Interest Coverage Ratio," "Total Leverage Ratio," "EBITDA," "Permitted Liens," "Fully Funded LTV," "Liquidity," "Recurring Revenue," "Debt-to-Recurring Revenue Ratio" or any respective comparable definitions for such Eligible Loan Asset (to the extent such financial covenants or definitions are included in the Underlying Instruments), or (iii) any term or provision referenced in or utilized in the calculation of any financial covenant or modifies any of the required maintenance levels of any financial covenant in the Underlying Instrument for such Eligible Loan Asset, in the case of either clause (i), (ii) or (iii) above, in a manner that, in the sole discretion of the Administrative Agent, is materially adverse to the value of such Eligible Loan Asset;
"Materials of Environmental Concern" means any material, substance or waste that is listed, regulated, or otherwise defined as hazardous, toxic, radioactive, a pollutant or a contaminant (or words of similar regulatory intent or meaning) under applicable Environmental Law, or which could give rise to liability under any Environmental Law.
"Maturity Amendment" means, any amendment to the Underlying Instruments of any Loan Asset which delays or extends the maturity date or any principal payment date for such Loan Asset.
"Maximum Obligor Limit" means, for the purposes of determining the eligibility of any Eligible Loan Asset as a Specified Loan Asset, the maximum percentage of the Concentration Denominator (inclusive of the Unfunded Exposure Amount of such Eligible Loan Asset) represented by a single Obligor and its Affiliates.
"Maximum Portfolio Advance Rate" means, as of any date of determination, the advance rate corresponding to the Diversity Score of the Eligible Loan Assets included in the Collateral as of such date, as set forth below:
Diversity Score (x) |
Maximum Portfolio Advance Rate |
x < 5.0 |
0% |
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5.0 ≤ x < 10.0 |
35% |
10.0 ≤ x < 15.0 |
50% |
15.0 ≤ x < 20.0 |
60% |
x ≥ 20.0 |
65% |
"Measurement Date" means each of the following dates: (a) the Closing Date; (b) each Reporting Date occurring in a calendar month in which a Payment Date does not occur;
(k) the last day of the Revolving Period.
"Minimum Equity Amount" means the greater of (a) the sum of the Outstanding Balances of all Eligible Loan Assets that are the obligations of the three (3) largest Obligors and (b) 20% of the Facility Amount.
"Minimum Utilization" means (a) on any day during the Ramp-Up Period, 0% of the Facility Amount, (b) on any day following the Ramp-Up Period and prior to the twelve (12) month anniversary of the Closing Date, 35% of the Facility Amount and (c) on any day on and after the twelve (12) month anniversary of the Closing Date and prior to the end of the Revolving Period, 65% of the Facility Amount and (c) at all other times, the Advances Outstanding.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc. (or its successors in interest). "Xxxxxx Xxxxxxx" means Xxxxxx Xxxxxxx Bank, N.A., and its successors and assigns. "Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of
ERISA to which the applicable Person or any ERISA Affiliate of that Person contributed or had any obligation to contribute, or with respect to which such Person or ERISA Affiliate has any liability (whether actual or contingent).
"Net Asset Value" means, as of any date of determination, computed in accordance with GAAP, (a) the market value of investments and other assets of the Transferor (calculated on a consolidated basis together with its Subsidiaries), minus (b) the aggregate sum of all liabilities (including accrued expenses) of the Transferor (calculated on a consolidated basis together with its Subsidiaries).
"Non-Approval Event" means an event that (a) will be deemed to have occurred if, during the twelve (12) month period immediately following the Closing Date, the quotient of (i) the number of Loan Assets submitted by the Borrower to the Administrative Agent for inclusion as Eligible Loan Assets that the Administrative Agent has not approved pursuant to paragraph 1(b) of Schedule II (provided that (x) such Loan Asset would be an Eligible Loan Asset but for the Administrative Agent's non-approval of such Loan Asset and (y) at least ten such Loan Assets have been submitted for review during such six-month period) divided by (ii) the total number of Eligible Loan Assets submitted by the Borrower during such six-month period to the
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Administrative Agent for inclusion as Eligible Loan Assets, is 50% or greater and (b) will be continuing until the conditions set forth in clause (a) of this definition are no longer true. For the avoidance of doubt, the denominator shall include Specified Loan Assets and Eligible Loan Assets approved in writing by the Administrative Agent in its sole discretion.
"Non-Consenting Lender" has the meaning assigned to that term in Section 2.19(d). "Noteless Loan" means a Loan Asset with respect to which the Underlying Instruments
(a) do not require the Obligor to execute and deliver a promissory note to evidence the Indebtedness created under such Loan Asset or (b) require any holder of the Indebtedness created under such Loan Asset to affirmatively request a promissory note from the related Obligor (and none has been requested with respect to such Loan Asset held by the Borrower).
"Notice of Borrowing" means an irrevocable written notice of borrowing from the Borrower to the Administrative Agent in the form attached hereto as Exhibit D.
"Notice of Exclusive Control" has the meaning given to such term in the Control Agreement.
"Notice of Reduction" means a notice of a reduction of the Advances Outstanding pursuant to Section 2.16, in the form attached hereto as Exhibit E.
"Obligations" means all present and future indebtedness and other liabilities and obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Borrower to the Lenders, the Administrative Agent, the Account Bank, the Secured Parties, the Collateral Agent or the Collateral Custodian arising under this Agreement and/or any other Transaction Document and shall include, all liability for Yield and principal of the Advances Outstanding and all other sums due to the Lenders from time to time in respect of the I/O Notional Loans, Breakage Fees, indemnifications and other amounts due or to become due by the Borrower to the Lenders, the Administrative Agent, the Collateral Agent, the Collateral Custodian, the Secured Parties and the Account Bank under this Agreement and/or any other Transaction Document, including, any Lender Fee Letter, any Prepayment Premium and costs and expenses payable by the Borrower to the Lenders, the Administrative Agent, the Account Bank, the Collateral Agent or the Collateral Custodian, including attorneys' fees, costs and expenses, in accordance with the terms hereof, including interest, fees and other obligations that accrue after the commencement of an insolvency proceeding (in each case whether or not allowed as a claim in such insolvency proceeding).
"Obligor" means, with respect to a Loan Asset, the Person who is obligated to repay such Loan Asset (including, if applicable, a guarantor thereof), and whose assets are primarily relied upon by the Borrower at the time such Loan Asset was originated or purchased by the Borrower as the source of repayment of such Loan Asset.
"Obligor Information" means, with respect to any Obligor, (a) the legal name and tax identification number of such Obligor, (b) the jurisdiction in which such Obligor is domiciled, organized or incorporated, (c) either the audited financial statements for such Obligor for the three prior fiscal years (or such shorter period of time that the Obligor has been in existence) or a quality of earnings report with respect to such Obligor, (d) the Servicer's internal credit
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memorandum with respect to the Obligor and the related Loan Asset, including explanation of any EBITDA adjustments and detailed projections of free cash flow through maturity, (e) any lender presentations and confidential information memorandum received by the Servicer, (f) the annual report for the most recent fiscal year of such Obligor, (g) a company forecast for such Obligor including plans related to capital expenditures, (h) the financials for the most recent fiscal quarter, (i) the business model, company strategy and names of known peers of such Obligor, (j) the shareholding pattern and details of the management team of such Obligor, (k) details of any banking facilities and the debt maturity schedule of such Obligor, (l) for any Obligor of an Asset Based Loan, the monthly borrowing base reports, the most recent Appraised Value and any other information the Administrative Agent may reasonably request and (m) Underlying Instruments, unless in each case the Administrative Agent has agreed in writing to exclude any such information or documentation as Obligor Information for such Obligor (for the avoidance of doubt, such agreement to so exclude may be included in the related Approval Notice).
"OFAC" means the U.S. Department of Treasury's Office of Foreign Assets Control. "Officer's Certificate" means a certificate signed by a Responsible Officer of any Person. "Opinion of Counsel" means a customary written opinion of counsel, which opinion and
counsel are acceptable to the Administrative Agent in its sole discretion; provided that Milbank LLP shall be considered acceptable counsel for purposes of this definition.
"Origination Date" means, with respect to the determination of "Specified Loan Asset," the date on which the Underlying Instruments were entered into.
"Other Connection Taxes" has the meaning set forth in the definition of Excluded Taxes.
"Other Taxes" 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 Transaction Document.
"Outstanding Balance" means, as of any date of determination, (a) if a Loan Asset is denominated and payable in Dollars, the outstanding principal balance of such Loan Asset as of such date, and (b) if a Loan Asset is denominated and payable in an Eligible Currency other than Dollars, the equivalent in Dollars of the outstanding principal balance of such Loan Asset as of such date, determined by the Servicer using the Spot Rate (or, for purposes of daily reporting by the Collateral Agent, the Spot Rate as determined pursuant to clause (y) of the definition thereof), in each case exclusive of any PIK Interest or accrued interest on such Loan Asset as of such date; provided that, for purposes of calculating the "Outstanding Balance" of any PIK Loan Asset, principal payments received on such Loan Asset shall first be applied to reducing or eliminating any outstanding PIK Interest or accrued interest.
"Owned Asset" means a Loan Asset that the Administrative Agent or any of its Affiliates owns for its own account.
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"Pari Passu Provisions" means, in relation to any amount payable pursuant to
Section 2.04:
(v) in the case of any item (or items) ranking pari passu denominated in CAD, the Borrower shall use an amount of CAD from the Available Collections to make payments in CAD to meet such item or items;
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Dollars, with amounts in an Eligible Currency other than Dollars converted into Dollars by the Servicer at the Spot Rate).
"Participant Register" has the meaning assigned to such term in Section 12.04(e). "Patriot Act" means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56 (signed into law October 26, 2001).
"Payment" has the meaning assigned to such term in Section 12.21(a).
"Payment Account" means a securities account entitled "Payment Account," in the name of the Borrower subject to the lien and control of the Collateral Agent for the benefit of the Secured Parties; provided that the funds deposited therein from time to time shall constitute the property and assets of the Borrower and the Borrower shall be solely liable for any Taxes payable with respect to the Payment Account. On the Business Day prior to each Payment Date, funds to be distributed on such Payment Date will be transferred from the Collection Account to the Payment Account; provided, that funds to be distributed on a Payment Date in an Eligible Currency other than Dollars may be distributed from the related Eligible Currency Account in lieu of being remitted to the Payment Account.
"Payment Date" means the 25th calendar day of each January, April, July and October, unless such day is not a Business Day, in which case the following Business Day, commencing in January, 2024; provided that the final Payment Date shall occur on the Collection Date; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower requests to designate any other date as a "Payment Date," then the Administrative Agent may, in its sole discretion and with five Business Days' notice to the Collateral Agent, designate such other date as a "Payment Date" subject to any terms, conditions, provisions and limitations as determined by the Administrative Agent in its sole discretion with respect to each such additional Payment Date (including, any conforming changes that the Administrative Agent deems advisable or required to administer such additional Payment Date or the immediately subsequent scheduled Payment Date (e.g., changes to the calculation of "Determination Date" and "Remittance Period" in respect of such dates)).
"Payment Notice" has the meaning assigned to such term in Section 12.21(b).
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Pension Plan" means an "employee pension benefit plan" as such term is defined in Section 3(2) of ERISA, other than a Multiemployer Plan, that is subject to Title IV of ERISA or Section 412 of the Code and is sponsored or maintained by the Borrower or any ERISA Affiliate of the Borrower or to which the Borrower or any ERISA Affiliate of the Borrower contributes or has an obligation to contribute, or has any liability (whether actual or contingent).
"Permitted Investments" means, as of any date of determination:
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No Permitted Investment shall have an "f," "r," "p," "pi," "q," "sf" or "t" subscript affixed to its S&P rating. Any such investment may be made or acquired from or through the Collateral Agent or the Administrative Agent or any of their respective Affiliates, or any entity for whom the Collateral Agent, the Administrative Agent, the Account Bank, the Collateral Custodian or any of their respective Affiliates provides services and receives compensation (so long as such investment otherwise meets the applicable requirements of the foregoing definition of Permitted Investment at the time of acquisition). The Collateral Agent and Collateral Custodian shall have no obligation to determine or oversee compliance with the foregoing.
"Permitted Liens" means any of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (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 materialmen's, warehousemen's, mechanics', carriers', workmen's and repairmen's 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 and (c) Liens granted pursuant to or by the Transaction Documents.
"Permitted RIC Distribution" means distributions on any Payment Date to the Transferor (from the Collection Account or otherwise) to the extent required to allow the Transferor 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 Transferor in or with respect to any taxable year of the Transferor (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 Transferor shall not exceed 115% of the amounts that the Borrower would
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have been required to distribute to the Transferor to: (i) allow the Borrower 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 Borrower's 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 Borrower's 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 Borrower had qualified to be taxed as a "regulated investment company" under Subchapter M of the Code, (B) after the occurrence and during the continuance of an Unmatured Event of Default or an Event of Default, all such distributions shall be prohibited, and (C) amounts may be distributed pursuant to this definition only to the extent of available Interest Collections and Principal Collections and only so long as (x) the Borrowing Base Test (Aggregate) is satisfied immediately prior to and immediately after giving effect to such Permitted RIC Distribution (unless otherwise consented to by the Administrative Agent in its sole discretion) and (y) the Borrower gives at least two (2) Business Days' prior written notice thereof to the Administrative Agent, the Collateral Agent and the Collateral Custodian.
"Permitted Working Capital Lien" means, with respect to any Loan Asset, a Lien on the applicable Related Collateral (a) that is first priority under Applicable Law, (b) on specified accounts, documents, instruments, chattel paper, letter-of-credit rights, supporting obligations, deposit and investment accounts and (c) that is set forth on the related Approval Notice or otherwise approved by the Administrative Agent in writing in its sole discretion.
"Person" means an individual, partnership, corporation (including a statutory or business trust), limited liability company, joint stock company, trust, unincorporated association, sole proprietorship, joint venture, government (or any agency or political subdivision thereof) or other entity.
"PIK Interest" means interest accrued on a Loan Asset that is added to the principal amount of such Loan Asset instead of being paid as cash interest as it accrues.
"PIK Loan Asset" means a Loan Asset which provides for a portion of the interest that accrues thereon to be added to the principal amount of such Loan Asset for some period of time prior to such Loan Asset requiring the current cash payment of such previously capitalized interest, which cash payment shall be treated as an Interest Collection at the time it is received.
"Pledge Agreement" means that certain Pledge Agreement, dated as of the Closing Date, between the Transferor, as pledgor, and the Collateral Agent, as pledgee, as such Pledge Agreement may from time to time be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Pre-Approved Independent Manager Provider" means (a) Global Securitization Services, LLC, CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Xxxxxxx Management Company, Lord Securities Company, Puglisi
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& Associates or WalkersFS or (b) any other services provider approved in writing by the Administrative Agent and the Borrower.
"Prepayment Premium" means, in the event that this Agreement is terminated or the Facility Amount is permanently reduced, in each case, pursuant to Section 2.16(b) but subject to Section 2.16(d), (a) prior to the one (1) year anniversary of the Closing Date, an amount equal to 2.0% or (b) on or after the one (1) year anniversary of the Closing Date, but prior to the two (2) year anniversary of the Closing Date, an amount equal to 1.0%, in each case, of either (x) the Facility Amount, in the case of such termination, or (y) the amount of such reduction, in the case of such permanent reduction of the Facility Amount and, in each case, such amounts shall be payable pro rata to each Lender at the time of such termination or such reduction, as applicable; provided that the Prepayment Premium shall be calculated without giving effect to the provisos in the definition of "Facility Amount."
"Principal Collection Subaccount" means a sub-account of the Collection Account entitled "Principal Collection Subaccount," into which Principal Collections shall be segregated.
"Principal Collections" means with respect to any date of determination, all amounts received by the Borrower during the related Remittance Period that do not constitute Interest Collections and any other amounts that have been designated as Principal Collections pursuant to the terms of this Agreement; provided that Excluded Amounts shall not constitute Principal Collections.
"Private Credit Loan Asset" means any Eligible Loan Asset (other than a Liquid Credit Loan Asset).
"Pro Rata Share" means, with respect to each Lender, the percentage obtained by dividing the Commitment of such Lender (or, following the termination thereof, the outstanding principal amount of all Advances of such Lender), by the aggregate Commitments of all the Lenders (or, following the termination thereof, the aggregate Advances Outstanding).
"Proceeds" means, with respect to any property included in the Collateral, all property that is receivable or received when such property is collected, sold, liquidated, foreclosed, exchanged, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes all rights to payment with respect to such Collateral including any insurance relating thereto.
"Purchase and Sale Agreement" means that certain Purchase and Sale Agreement, dated as of the Closing Date, between the Transferor, as the seller, and the Borrower, as the purchaser, as amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof.
"Purchase Price" means, with respect to any Loan Asset, an amount (expressed as a percentage of par) equal to the greater of (a) zero and (b) the actual price paid in the applicable Eligible Currency by the Borrower for such Loan Asset; provided that if the actual price paid by the Borrower for such Loan Asset exceeds 100% of par, the Purchase Price shall be deemed to be 100% of par.
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"Qualified FE Affiliate" means any Affiliate (which shall include without limitation the Investment Adviser, any Affiliate of the Investment Adviser and any fund or account managed by the Investment Adviser or its Affiliate) of the Servicer (a) that has the ability and experience to professionally and competently perform duties similar to those imposed upon the Servicer under this Agreement, (b) that is legally qualified and has the capacity and applicable licenses or other regulatory qualifications to act as Servicer under this Agreement, (c) for which the principal personnel who would perform its duties hereunder as the Servicer are substantially the same individuals who perform such duties immediately prior to such assignment, (d) for which the Administrative Agent has received all "know your customer" documentation and information and any other reasonable due diligence materials reasonably and timely requested by the Administrative Agent and (e) that shall assume the obligations of the Servicer.
"Qualified Lender" means a Person that was not formed for the specific purpose of becoming a Lender or beneficial owner of an Advance and that is "qualified purchaser" within the meaning of Section 3(c)(7) of the 1940 Act.
"Ramp-Up Period" means the period beginning on the Closing Date and ending on the nine (9) month anniversary thereof.
"Recipient" means the Administrative Agent and any Lender, as applicable.
"Recipient Lender" has the meaning assigned to such term in Section 12.21(a).
"Records" means all documents relating to the Loan Assets, including books, records and other information executed in connection with the origination or acquisition of the Loan Assets or maintained with respect to the Loan Assets and the related Obligors that the Borrower, the Transferor or the Servicer have generated, in which the Borrower has acquired an interest pursuant to the Purchase and Sale Agreement or in which the Borrower or the Transferor have otherwise obtained an interest.
"Recoveries" means, with respect to any Defaulted Loan, the proceeds from the sale of the Related Collateral, the proceeds of any related Insurance Policy, any other recoveries with respect to such Loan Asset (without duplication) or the Related Collateral, and amounts representing late fees and penalties, net of any amounts received that are required under such Loan Asset, as applicable, to be refunded to the related Obligor.
"Recurring Revenue" means, with respect to any Eligible Loan Assets that are Recurring Revenue Loans, the definition of annualized recurring revenue used in the Underlying Instruments for each such Eligible Loan Asset, or any comparable term for "Revenue", "Recurring Revenue" or "Adjusted Revenue" in the Underlying Instruments for each such Eligible Loan Asset (provided that if such Underlying Instruments include terms for "Revenue", "Recurring Revenue" and/or "Adjusted Revenue", reference herein to "Recurring Revenue" shall refer to "Adjusted Revenue" under such Underlying Instruments) or if there is no such term in the Underlying Instruments, all recurring maintenance, service, support, hosting, subscription and other revenues identified by the Servicer (including, without limitation, software as a service subscription revenue), of the related Obligor and any of its parents or Subsidiaries that are
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obligated with respect to such Eligible Loan Asset pursuant to its Underlying Instruments (determined on a consolidated basis without duplication in accordance with GAAP).
"Recurring Revenue Loan" means any Loan Asset that satisfies all of the requirements set forth in the definition of "First Lien Loan" (other than clause (e) in the definition of "First Lien Loan") except that it is underwritten based on the Recurring Revenue of the Obligor, as determined by the Administrative Agent in its sole discretion after consultation with the Servicer and designated as such in the related Approval Notice.
"Redemption Amount" means, on any date of determination, the sum of (a) the aggregate amount paid or distributed by the Transferor to purchase its equity interests in connection with tender offers since the formation of the Transferor, and (b) the aggregate amount of equity interests of the Transferor redeemed, bought back or purchased directly or indirectly by the Transferor or with respect to which the holders thereof have withdrawn from the Transferor since the formation of the Transferor.
"Reference Time" with respect to any setting of the then-current Benchmark means (1) if such Benchmark is Term SOFR, the time set forth in the definition of Term SOFR, and (2) if such Benchmark is not Term SOFR, the time determined by the Administrative Agent in accordance with the Benchmark Replacement Conforming Changes.
"Register" has the meaning assigned to that term in Section 2.13.
"Registered" means a debt obligation that is in registered form for purposes of the Code. "Related Asset" means, with respect to each Loan Asset, all right, title and
interest of the Borrower in and to:
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"Related Collateral" means, with respect to a Loan Asset, any property or other assets designated and pledged or mortgaged as collateral to secure repayment of such Loan Asset, as applicable, including, mortgaged property and/or a pledge of the stock, membership or other ownership interests in the related Obligor and all Proceeds from any sale or other disposition of such property or other assets.
"Release Date" has the meaning set forth in Section 2.07(b).
"Relevant Governmental Body" means, as applicable, (i) the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor or (ii) the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada, or any successor thereto.
"Remittance Period" means, (a) as to the initial Payment Date, the period beginning on, and including, the Closing Date and ending on, and including, the Determination Date immediately preceding such Payment Date and (b) as to any subsequent Payment Date, the period beginning, and including, on the first day after the most recently ended Remittance Period and ending on, and including, the Determination Date immediately preceding such Payment Date, or, with respect to the final Remittance Period, the Collection Date.
"Replacement Servicer" has the meaning assigned to that term in Section 6.01(c).
"Reporting Date" means the 24th day of such calendar month, commencing in November, 2023; provided that, in each case, if such day is not a Business Day then the Reporting Date shall occur on the following Business Day.
"Required Lenders" means (a) Xxxxxx Xxxxxxx (as a Xxxxxx xxxxxxxxx) and its successors and assigns and (b) the other Lenders, if any, representing, together with Xxxxxx Xxxxxxx, an aggregate of at least 51% of the aggregate Commitments of the Lenders then in effect.
"Required Loan Documents" means, for each Loan Asset, the following documents or instruments, all as specified on the related Loan Asset Checklist:
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issued in the name of the Borrower or is a Noteless Loan (other than in the case of any Loan Asset originated by the Borrower), an executed copy of each assignment and assumption agreement, transfer document, credit agreement or such other instrument (if and as applicable) relating to such Loan Asset evidencing the assignment of such Loan Asset from any prior third party owner thereof to the Borrower and from the Borrower in blank;
"Resolution Authority" means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
"Responsible Officer" means, with respect to any Person, any duly authorized officer of such Person with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other duly authorized officer of such Person to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject.
"Restricted Junior Payment" means (a) any dividend or other distribution, direct or indirect, on account of any class of membership interests of the Borrower now or hereafter outstanding, except a dividend paid solely in interests of that class of membership interests or in any junior class of membership interests of the Borrower; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of membership interests of the Borrower now or hereafter outstanding, (c) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire membership interests of the Borrower now or hereafter outstanding, and (d) any payment of management fees by the Borrower. For the avoidance of doubt, (x) payments and reimbursements due to the Servicer in accordance with this Agreement or any other Transaction Document do not constitute Restricted Junior Payments, (y) distributions by the Borrower to holders of its membership interests of Loan Assets or of cash or other proceeds relating thereto which have been substituted by the Borrower in accordance with this Agreement, or otherwise transferred to the Transferor pursuant to the last sentence of Section 2.07(d), shall not constitute Restricted Junior Payments and (z) the payment of the purchase price for any Loan Asset transferred by the Transferor to the Borrower shall not constitute Restricted Junior Payments.
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"Retained Interest" means, with respect to any Loan Asset that is transferred to the Borrower, (a) all of the obligations, if any, of the agent(s) under the documentation evidencing such Loan Asset and (b) the applicable portion of the interests, rights and obligations under the documentation evidencing such Loan Asset that relate to such portion(s) of the indebtedness and interest in other obligations that are owned by another lender.
"Revenue" means, with respect to any Eligible Loan Assets that are Recurring Revenue Loans, the definition of annualized recurring revenue used in the Underlying Instruments for each such Eligible Loan Asset, or any comparable term for "Revenue" or "Adjusted Revenue" in the Underlying Instruments for each such Eligible Loan Asset (provided that if such Underlying Instruments include terms for "Revenue" and/or "Adjusted Revenue", reference herein to "Revenue" shall refer to "Adjusted Revenue" under such Underlying Instruments); provided that if there is no such term in the Underlying Instruments, revenue for the related Obligor and any of its parents or Subsidiaries that are obligated with respect to such Eligible Loan Asset pursuant to its Underlying Instruments (determined on a consolidated basis without duplication in accordance with GAAP) for the most recent four fiscal quarter period for which financial statements have been delivered.
"Review Criteria" has the meaning assigned to that term in Section 11.02(b)(i). "Revolving Loan" means a loan that is a line of credit or contains an unfunded
commitment arising from an extension of credit to an Obligor, pursuant to the terms of which amounts borrowed may be repaid and subsequently reborrowed; provided that any such Loan Asset will no longer be a Revolving Loan once all commitments by the Borrower to make advances to the related Obligor expire, are terminated or irrevocably reduced to zero.
"Revolving Period" means the period commencing on the Closing Date and ending on the day preceding the earlier to occur of (a) the Commitment Termination Date and (b) the Facility Maturity Date.
"S&P" means S&P Global Ratings, an S&P global business (and any successor or successors thereto).
"Same Day Pricing" means same day bid side pricing from Loan Pricing Corp. or IHS Markit Ltd. (or such other pricing service approved by the Administrative Agent in its sole discretion).
"Sanctioned Country" means any country or territory that is the subject of comprehensive Sanctions (currently, Crimea, Cuba, Iran, North Korea, Syria, and the so-called Donetsk People's Republic and the so-called Luhansk People's Republic).
"Sanctions" means any economic or financial sanctions administered or enforced by the United States government (including OFAC and the U.S. Department of State), the European Union, His Majesty's Treasury (United Kingdom) or the United Nations Security Council.
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"Scheduled Payment" means each scheduled payment of principal and/or interest required to be made by an Obligor on the related Loan Asset, as adjusted pursuant to the terms of the related Underlying Instruments.
"Second Lien Loan" means any Loan Asset (a) that is secured by a valid and perfected Lien on substantially all of the Obligor's assets constituting Related Collateral for such Loan Asset, subject only to the prior Lien provided to secure the obligations under a "first lien" loan pursuant to typical commercial terms, and any other expressly permitted Liens under the Underlying Instrument for such Loan Asset, including any "permitted liens" as defined in such Underlying Instrument, or such comparable definition if "permitted liens" is not defined therein,
(b) that provides that the payment obligation of the Obligor on such Loan Asset is "senior debt" and, except for the express lien priority provisions under the documentation of the "first lien" lenders, is either senior to, or pari passu with, all other Indebtedness of such Obligor, and (c) that the Servicer determines in accordance with the Servicing Standard that the value of the Related Collateral (or the enterprise value of the related Obligors) on or about the time of origination equals or exceeds the Outstanding Balance of the Loan Asset plus the aggregate outstanding balances of all other Indebtedness of equal or greater seniority secured by the same Related Collateral (including, without limitation, the outstanding principal balance of the "first lien" loan). For clarity, Asset Based Loans shall not be considered to be Second Lien Loans for any purpose hereunder.
"Secured Obligations" has the meaning assigned to that term in Section 2.12(a).
"Secured Party" means each of the Administrative Agent, each Lender, each Affected
Party, each Indemnified Party, the Collateral Custodian, the Collateral Agent and the Account Bank.
"Senior Leverage Ratio" means, with respect to any Loan Asset or any portion of any Loan Asset (other than an Asset Based Loan or a Recurring Revenue Loan), as applicable, for any period, the meaning of "Senior Leverage Ratio" or any comparable definition relating to first lien senior secured (or such applicable lien or applicable level within the capital structure) indebtedness in the Underlying Instruments for each such Loan Asset, and in any case that "Senior Leverage Ratio" or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) first lien senior secured (or such applicable lien or applicable level within the capital structure) Indebtedness (including FLLO Loans) less Unrestricted Cash, in each case, as of the applicable test date, to (b) EBITDA, for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date, or if the Obligor of such Loan Asset was organized or formed within the previous year, another applicable test period as determined by the Administrative Agent in its reasonable discretion, as calculated by the Servicer in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the related Underlying Instruments.
"Senior Secured Bond" means a debt security (that is not a loan) that is (a) issued by a corporation, limited liability company, partnership or trust, (b) constitutes borrowed money, (c) is in the form of, or represented by, a bond, note, certificated debt security or other debt security,
(d) that the Servicer determines in accordance with the Servicing Standard that the value of the
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Related Collateral securing the debt security (or the enterprise value of the related Obligors) on or about the time of issuance equals or exceeds the Outstanding Balance thereof plus the aggregate outstanding balances of all other Indebtedness of equal seniority secured by the same Related Collateral, and (e) is secured by a valid first priority perfected security interest or lien in, to or on specified collateral securing the obligor's obligations under such obligation.
"Servicer" means, as of any date of determination, the Person then authorized, pursuant to Section 6.01 to service, administer, and collect on the Loan Assets and exercise rights and remedies in respect of the same.
"Servicer Default" means the occurrence of any one or more of the following
events:
Collection Account (including with respect to bifurcation and remittance of Interest Collections and Principal Collections) or the Unfunded Exposure Account, as required by any Transaction Documents, which continues unremedied for a period of two (2) Business Days (or three (3) Business Days if such failure is due to an administrative or technical issue that is beyond the Servicer's reasonable control);
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any of the Administrative Agent's or the Lenders' rights hereunder or under any Transaction Documents and, in each case, the same continues unremedied (if such failure can be remedied) for a period of thirty (30) days after the earlier to occur of (x) the date on which written notice thereof is given to the Servicer or (y) the date on which a Responsible Officer of the Servicer acquires knowledge thereof; it being agreed that the sale of any Loan Asset that is not an Eligible Loan Asset in accordance with the terms of Section 2.07 shall remedy the failure of any representation, warranty or certification related to such Loan Asset;
"Servicer ERISA Event" means (a) with respect to a Pension Plan, any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived; (b) a withdrawal by the Servicer or any of its ERISA Affiliates from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as a termination under Section 4062(e) of ERISA; (c) the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived, with respect to a Pension Plan; (d) the failure to make any required contribution to a Multiemployer Plan; (e) the incurrence by the Servicer or
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any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to a complete or partial withdrawal by the Servicer or any of its ERISA Affiliates from a Multiemployer Plan, written notification of the Servicer or any of its ERISA Affiliates concerning the imposition of any withdrawal liability, as such term is defined in Part I of Subtitle E of Title IV of ERISA, as a result of a complete or partial withdrawal from a Multiemployer Plan or written notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA or in "endangered" or "critical" status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or Section 4041A of ERISA, or the receipt by the Servicer or any of its ERISA Affiliates from the PBGC of any notice relating to the intention to terminate a Pension Plan or Multiemployer Plan; (h) the imposition of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or Multiemployer Plan, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Servicer or any of its ERISA Affiliates; or (i) the occurrence of a non-exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) which could result in liability to the Servicer or any of its ERISA Affiliates.
"Servicer Pension Plan" means an "employee pension benefit plan" as such term is defined in Section 3(2) of ERISA, other than a Multiemployer Plan, that is subject to Title IV of ERISA or Section 412 of the Code and is sponsored or maintained by the Servicer or any ERISA Affiliate of the Servicer or to which the Servicer or any ERISA Affiliate of the Servicer contributes or has an obligation to contribute, or has any liability (whether actual or contingent).
"Servicer Removal Notice" has the meaning assigned to that term in Section 6.01(b). "Servicer's Certificate" has the meaning assigned to that term in Section 6.08(c). "Servicing Fee" means the fee payable to the Servicer on each Payment Date in arrears in
respect of each Remittance Period, which fee shall be equal to the product of (a) 0.25% per annum, (b) the arithmetic mean of the aggregate Outstanding Balance of all Eligible Loan Assets on the first day and on the last day of the related Remittance Period and (c) the actual number of days in such Remittance Period, divided by 360; provided that, in the sole discretion of the Servicer, the Servicer may, from time to time, waive all or any portion of the Servicing Fee payable on any Payment Date.
"Servicing Report" has the meaning assigned to that term in Section 6.08(b).
"Servicing Standard" means, with respect to any Loan Assets included in the Collateral, to service and administer such Loan Assets in accordance with Applicable Law, the terms of this Agreement, the Underlying Instruments, and, to the extent consistent with the foregoing, the same care, skill, prudence and diligence with which the Investment Adviser services and administers loans comparable to the Loan Assets for the Investment Adviser's own account or for the account of others.
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"Similar Law" has the meaning assigned to that term in Section 4.01(x).
"SOFR" with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York's Website.
"SOFR Advance" means an Advance that bears interest at a rate based on Term SOFR. "Solvent" means, as to any Person as of any date of determination, having a state of
affairs such that all of the following conditions are met: (a) the fair value of the property of such Person is greater than the amount of such Person's liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (b) the present fair saleable value of the property of such Person in an orderly liquidation of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts and other liabilities as they become absolute and matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in a business or a transaction, and does not propose to engage in a business or a transaction, for which such Person's property assets would constitute unreasonably small capital.
"XXXXX" means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the XXXXX Administrator on the XXXXX Administrator's Website.
"XXXXX Administrator" means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
"XXXXX Administrator's Website" means the Bank of England's website, currently at xxxx://xxx.xxxxxxxxxxxxx.xx.xx, or any successor source for the Sterling Overnight Index Average identified as such by the XXXXX Administrator from time to time.
"XXXXX Determination Day" has the meaning assigned to that term in the definition of "Daily Simple XXXXX."
"XXXXX Xxxx Day" has the meaning assigned to that term in the definition of "Daily Simple XXXXX."
"XXXXX Replacement Date" means the earliest to occur of the following events with respect to Daily Simple XXXXX:
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For the avoidance of doubt, (A) if the event giving rise to the XXXXX Replacement Date for Daily Simple XXXXX occurs on the same day as, but earlier than, the XXXXX Determination Day in respect of any determination, the XXXXX Replacement Date will be deemed to have occurred prior to the XXXXX Determination Day for Daily Simple XXXXX and for such determination and (B) the "XXXXX Replacement Date" will be deemed to have occurred in the case of clauses (a) or (b) with respect to Daily Simple XXXXX upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of Daily Simple XXXXX (or the published component used in the calculation thereof).
"Specified Industries" means (i) the "Broadline Retail" and "Specialty Retail" Industry Classifications, (ii) the "Oil, Gas & Consumable Fuels" Industry Classification, (iii) the "Publishing" sub-industry of the "Media" Industry Classification, (iv) the "Hotels, Restaurants and Leisure" Industry Classification, (v) the "Energy, Equipment and Services" Industry Classification and (vi) the "Airlines" Industry Classification.
"Specified Loan Asset" means an Eligible Loan Asset that is a Private Credit Loan Asset and satisfies the following conditions as of the applicable Cut-Off Date:
Type: |
First Lien Loan or Unitranche Loan |
Minimum EBITDA: |
$7,500,000 |
Maximum EBITDA adjustments percentage of less than: |
30.0% |
Origination Date: |
No more than nine (9) months prior to the date such Eligible Loan Asset has been sold, contributed, or transferred to the Borrower |
Senior Leverage Ratio: |
|
If EBITDA is greater than or equal to $25,000,000 |
Senior Leverage Ratio is less than 6.00:1.00 |
If EBITDA is greater than or equal to $7,500,000 and less than $25,000,000 |
Senior Leverage Ratio is less than 4.75:1.00 |
Minimum Cash Interest Coverage Ratio: |
2.00:1:00 |
Equity Cushion of greater than: |
40.0% |
Excluded assets: |
PIK Loan Assets, Senior Secured Bonds, Broadly Syndicated Loans, Recurring Revenue Loans, Asset Based Loans or Cov-Lite Loan Assets |
Minimum Purchase Price: |
97% |
Industry Classification: |
Cannot be in a Specified Industry |
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Maximum Obligor Limit |
4% |
"Spot Rate" means, as of any date of determination, with respect to the conversion of any Eligible Currency (other than Dollars), (x) for an actual currency exchange, the applicable currency Dollar spot rate obtained by the Servicer through customary banking channels (including through the Account Bank in accordance with the Control Agreement) or (y) for all other purposes, the applicable currency Dollar spot rate that appeared on the Bloomberg screen for such currency at the end of the immediately preceding Business Day (or if such date is a Determination Date, at the end of such day).
"Standby Investment" means U.S. Bank Money Market Deposit Account.
"State" means one of the fifty states of the United States or the District of Columbia. "Stated Maturity" means the date that is five (5) years following the Closing Date. "Structured Finance Obligation" means any obligation of a special purpose vehicle
secured directly by, referenced to, or representing ownership of, a pool of receivables or other assets, including collateralized debt obligations and single asset repackages.
"Subsidiary" means with respect to a Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person; provided that notwithstanding the forgoing, an Obligor with respect to which the Borrower has received equity interests in connection with the exercise of any remedies with respect to a Loan Asset, the exercise of any warrant with respect to a Loan Asset or any exchange offer, work-out or restructuring of a Loan Asset shall not be considered a Subsidiary.
"Substitute Eligible Loan Asset" means each Eligible Loan Asset Granted by the Borrower to the Collateral Agent, on behalf of the Secured Parties, pursuant to Section 2.07(b)(ii).
"Synthetic Security" means a security or swap transaction that has payments associated with either payments of interest and/or principal on a reference obligation or the credit performance of a reference obligation.
"Target Portfolio Amount" means $540,000,000.
"Tax Expense Cap" means, for any Payment Date, a per annum amount equal to $75,000.
"Taxes" means any present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), charges, assessments or fees of any nature
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(including interest, penalties, and additions thereto) that are imposed by any Governmental Authority.
"Term XXXXX" means, with respect to any CAD Advance for any day during a Remittance Period, the Term XXXXX Reference Rate for a tenor of three (3) months, as such rate is published by the Term XXXXX Administrator on the Term XXXXX Determination Date for such Remittance Period; provided, however, that if as of 1:00 p.m. (Toronto time) on the Term XXXXX Determination Date the Term XXXXX Reference Rate for such tenor has not been published by the Term XXXXX Administrator and a Canadian Benchmark Replacement Date with respect to the Term XXXXX Reference Rate has not occurred, then Term XXXXX will be the Term XXXXX Reference Rate for such tenor as published by the Term XXXXX Administrator on the first preceding Business Day for which such Term XXXXX Reference Rate for such tenor was published by the Term XXXXX Administrator.
"Term XXXXX Adjustment" means a percentage equal to 0.32138% (32.138 basis points).
"Term XXXXX Administrator" means Candeal Benchmark Administration Services Inc., TSX Inc., or any successor administrator.
"Term XXXXX Determination Date" means, with respect to each Remittance Period, the day that is two (2) Business Days prior to the first day of such Remittance Period.
"Term XXXXX Reference Rate" the forward-looking term rate based on XXXXX.
"Term SOFR" means, with respect to any SOFR Advance for any day during a Remittance Period, the Term SOFR Reference Rate for a tenor of three (3) months, as such rate is published by the Term SOFR Administrator at 6:00 a.m. (New York City time) on the Term SOFR Determination Date for such Remittance Period; provided, however, that if as of 5:00 p.m. (New York City time) on the Term SOFR Determination Date the Term SOFR Reference Rate for the foregoing tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator; provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
"Term SOFR Administrator" means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
"Term SOFR Determination Date" means, with respect to each Remittance Period, the day that is two (2) U.S. Government Securities Business Days prior to the first day of such Remittance Period.
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"Term SOFR Reference Rate" means the forward-looking term rate based on SOFR.
"Termination/Reduction Notice" means each notice required to be delivered by the Borrower in respect of any termination of this Agreement or any permanent reduction of the Facility Amount, in the form of Exhibit F.
"Total Borrower Capitalization" means, on any date of determination, the sum of (a) the Outstanding Balance of all Loan Assets plus (b) the aggregate amount on deposit in the Principal Collection Subaccount plus (c) the aggregate amount on deposit in the Unfunded Exposure Account.
"Total Committed Capital" means (i) during the Transferor's status as a private business development company, on any date of determination, the total capital commitments of the Transferor (excluding withdrawn capital commitments), and (ii) upon the Transferor becoming a nontraded business development company, on any date of determination, the total net cash proceeds of the issuance of the Transferor's equity interests (other than proceeds of any distribution or dividend reinvestment plan) since the formation of the Transferor less the Redemption Amount.
"Total Leverage Ratio" means, with respect to any Loan Asset (other than an Asset Based Loan) for any period, the meaning of "Total Leverage Ratio" or any comparable definition in the Underlying Instruments for each Loan Asset, and in any case that "Total Leverage Ratio" or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) Indebtedness less Unrestricted Cash, in each case, as of the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date, or if the Obligor of such Loan Asset was organized or formed within the previous year, another applicable test period as determined by the Administrative Agent in its reasonable discretion, to (b) EBITDA, for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date, or if the Obligor of such Loan Asset was organized or formed within the previous year, another applicable test period as determined by the Administrative Agent in its reasonable discretion, as calculated by the Servicer in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the related Underlying Instruments.
"Transaction Documents" means this Agreement, each Joinder Supplement, any Assignment and Acceptance, the Purchase and Sale Agreement, the Control Agreement, the Collateral Agent and Collateral Custodian Fee Letter, each Lender Fee Letter, the Pledge Agreement and each document, instrument or agreement related to any of the foregoing.
"Transferor" means First Eagle Private Credit Fund, in its capacity as the Transferor hereunder and as the seller under the Purchase and Sale Agreement, together with its successors and assigns in such capacity.
"Treasury" means the United States Department of the Treasury.
"Treasury Regulations" means the Treasury regulations promulgated under the Code.
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"U.S. Government Securities Business Day" means any day except for (a) a Saturday,
(b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
"U.S. Tax Compliance Certificate" has the meaning assigned to that term in Section 2.11(g)(i)c.
"UCC" means the Uniform Commercial Code as from time to time in effect in the specified jurisdiction.
"UK Financial Institution" means any "BRRD Undertaking" (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
"UK Resolution Authority" means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
"Unadjusted Benchmark Replacement" means the applicable Benchmark Replacement (Dollar) excluding the related Benchmark Replacement Adjustment.
"Underlying Instruments" means the loan agreement, credit agreement or other agreement pursuant to which a Loan Asset has been issued or created and each other agreement that governs the terms of or secures the obligations represented by such Loan Asset or of which the holders of such Loan Asset are the beneficiaries.
"Unfunded Exposure Account" means a securities account (comprised of the subaccounts thereof for each Eligible Currency) entitled "Unfunded Exposure Account," in the name of the Borrower subject to the lien and control of the Collateral Agent for the benefit of the Secured Parties; provided that the funds deposited therein (including any interest and earnings thereon) from time to time shall constitute the property and assets of the Borrower and the Borrower shall be solely liable for any Taxes payable with respect to the Unfunded Exposure Account.
"Unfunded Exposure Amount" means, as of any date of determination, with respect to a Delayed Draw Loan Asset or a Revolving Loan, as applicable, an amount equal to the aggregate amount of all unfunded commitments associated with such Loan Asset as of such date.
"Unfunded Exposure Amount Shortfall" has the meaning assigned to that term in Section
2.02(f).
"Unfunded Exposure Equity Amount" means, on any date of determination during the
Amortization Period, the Aggregate Unfunded Exposure Amount, and otherwise, an amount equal to:
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"United States" means the United States of America.
"United States Tax Person" means a "United States person" as defined in Section 7701(a)(30) of the Code.
"Unitranche Loan" means any Loan Asset (a) that is secured by a valid and perfected first priority Lien on substantially all of the Obligor's assets constituting Related Collateral for such Loan Asset, subject to any Permitted Working Capital Lien, any super senior Revolving Loan permitted pursuant to the proviso at the end of this definition and expressly permitted Liens, including any "permitted liens" as defined in the Underlying Instrument for such Loan Asset or such comparable definition if "permitted liens" is not defined therein, (b) that provides that the payment obligation of the Obligor on such Loan Asset is either senior to, or pari passu with, all other Indebtedness of such Obligor (other than Indebtedness related to a Permitted Working Capital Lien or a super senior Revolving Loan permitted pursuant to the proviso at the end of this definition), and (c) for which Liens on the Related Collateral securing any other outstanding Indebtedness of the Obligor (excluding any Permitted Working Capital Lien, Liens securing a super senior Revolving Loan permitted pursuant to the proviso at the end of this definition and expressly permitted Xxxxx described in clause (a) above but including Liens securing Second Lien Loans) is expressly subject to and contractually or structurally subordinate to the priority Liens securing such Unitranche Loan; provided that any Loan Asset that would otherwise constitute a First Lien Loan but for clause (e) of the definition thereof shall constitute a Unitranche Loan; provided, further, that any Loan Asset that would otherwise constitute a Unitranche Loan but for being subordinate to a super senior Revolving Loan and the ratio of the lower of (1) the committed amount or (2) if at any time the borrowing base for the last twelve (12) months is available, then the average borrowing base for the last twelve (12) months, of such super senior Revolving Loan to the EBITDA of the Obligor is less than or equal to 1.00:1.00 as of the Cut-Off Date, such Loan Asset may be designated as a Unitranche Loan at the sole discretion of the Administrative Agent as of the Cut-Off Date (and, should such designation not be made by the Administrative Agent, at any time after the borrowing base for the last twelve (12) months that was not previously available becomes available, the Borrower or the Servicer may request that the Administrative Agent redesignate such Loan Asset as a Unitranche Loan as of the Cut-Off Date). For clarity, Asset Based Loans shall not be considered to be Unitranche Loans for any purpose hereunder.
"Unmatured Event of Default" means any event that, if it continues uncured, will, with lapse of time, notice or lapse of time and notice, constitute an Event of Default.
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"Unpledged Capital Commitments" means the sum of any undrawn or recallable and readily available capital commitments of equityholders of the Transferor that are either (1) not pledged or subject to any Lien, including, without limitation, any subscription line credit facility, equityholder's note or similar instrument relating thereto or (2) in excess of the amount of any indebtedness secured by such capital commitments.
"Unrestricted Cash" means, (a) with respect to any Loan Asset, the meaning of "Unrestricted Cash" or any comparable definition in the Underlying Instruments for the applicable Loan Asset and (b) in any case that "Unrestricted Cash" or such comparable definition is not defined in such Underlying Instruments or otherwise as applicable in this Agreement, cash and cash equivalents of the applicable Person available for use for general corporate purposes and not held in any reserve account or legally or contractually restricted for any particular purposes or uses.
"Unused Fee" has the meaning assigned to that term in Section 2.09.
"Unused Fee Rate" means a rate equal to 0.60% per annum.
"Value Adjustment Event" means, with respect to any Loan Asset, the occurrence of any one or more of the following events after the related Cut-Off Date:
(iii) in the case of Asset Based Loans, either (A) the Fully Funded LTV with respect to such Loan Asset on any date reported under the Underlying Instrument increases by more than 15.0% from the Fully Funded LTV as calculated on the applicable Cut-Off Date, (B) the Fully Funded LTV is greater than 100% or (C) the excess availability of any revolving loan related to such Asset Based Loan reported under the Underlying Instruments decreases to less than 25.0% and
(iv) in the case of Recurring Revenue Loans, the Debt-to-Recurring-Revenue Ratio with respect to such Loan Asset on any date reported under the Underlying Instrument increases by more than 15.0% from the Debt-to-Recurring-Revenue Ratio calculated on the applicable Cut-Off Date;
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"Warranty Breach Event" means, as to any Loan Asset, (a) the discovery that, as of the related Cut-Off Date, such Loan Asset did not satisfy the definition of "Eligible Loan Asset" or there otherwise existed a breach of any representation or warranty relating to such Loan Asset or
(b) the Borrower fails to satisfy Section 3.02(a)(ii) or Section 3.04(b), as applicable, with respect to such Loan Asset.
"Warranty Breach Loan Asset" means any Loan Asset with respect to which a Warranty Breach Event has occurred.
"Weighted Average Advance Rate" means, as of any date of determination with respect to all Eligible Loan Assets included in the Aggregate Adjusted Borrowing Value, the number obtained by (a) summing the products obtained by multiplying (i) the Advance Rate of each Eligible Loan Asset by (ii) such Eligible Loan Asset's contribution to the Aggregate Adjusted Borrowing Value and dividing (b) such sum by the Aggregate Adjusted Borrowing Value.
"Weighted Average Life" means, as of any date of determination, the number obtained by
(a) for each Eligible Loan Asset (other than a Defaulted Loan), multiplying the amount of each scheduled distribution of principal to be paid after such determination date by the number of years (rounded to the nearest hundredth) from such determination date until such scheduled distribution of principal is due; (b) summing all of the products calculated pursuant to clause (a) above; and (c) dividing the sum calculated pursuant to clause (b) above by the sum of all scheduled distributions of principal due on all the Eligible Loan Assets (other than Defaulted Loans) as of such determination date.
"Weighted Average Life Test" means a test that will be satisfied on any date of determination if the Weighted Average Life of all Eligible Loan Assets as of such date is less than or equal to 7.0 years.
"Weighted Average Spread" means, as of any date of determination, a fraction (expressed as a percentage) obtained by (a) multiplying the Outstanding Balance of each Eligible Loan Asset (and, in the case of any Delayed Draw Loan Asset or Revolving Loan, the unfunded
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portion of the commitment thereunder) (other than a Defaulted Loan) included in the Collateral as of such date by its Effective Spread, (b) summing the amounts determined pursuant to clause (a), and (c) dividing the sum determined pursuant to clause (b) above by the aggregate Outstanding Balance of all Eligible Loan Assets (and the unfunded portions of all Delayed Draw Loan Assets and Revolving Loans, as applicable) (other than a Defaulted Loan) included in the Collateral as of such date.
"Weighted Average Spread Test" means a test that will be satisfied on any date of determination if the Weighted Average Spread is greater than or equal to 4.0%.
"Write-Down and Conversion Powers" means, (a) 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, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
"Yield" means the sum of the following, payable on each Payment Date:
YR x X X
where: YR |
= |
the Yield Rate applicable to such Advance on such day during such Remittance Period; |
L |
= |
the outstanding principal amount of such Advance on such day; and |
D |
= |
360; |
plus
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accordance with the following formula (but only to the extent that such amounts were not previously paid to the Lenders):
YRAM x X X
where: YRAM = the Yield RateApplicable Margin applicable on
|
such day; |
|
L |
= |
the greater of (a) the Minimum Utilization minus the Advances Outstanding on such day, and (b) 0; and |
D |
= |
360; |
YR x X X
where: YR |
= |
the Yield Rate; |
L |
= |
the I/O Notional Loan Amount on the I/O Notional Loan on such day; and |
D |
= |
360; |
provided that (i) no provision of this Agreement shall require the payment or permit the collection of Yield in excess of the maximum permitted by Applicable Law and (ii) Yield shall not be considered paid by any distribution if at any time such distribution is later required to be rescinded by the Lender to the Borrower or any other Person for any reason including, such distribution becoming void or otherwise avoidable under any statutory provision or common law or equitable action, including, any provision of the Bankruptcy Code.
"Yield Rate" means, (i) for any Advance in any Eligible Currency, as of any date of determination during any Remittance Period applicable to such Advance, an interest rate per annum equal to the Benchmark for such date plus the Applicable Margin and (ii) with respect to the I/O Notional Loan, the I/O Rate.
"Zero-Coupon Obligation" means any loan that, at the time of purchase, does not by its terms provide for the payment of cash interest.
Section 1.02 Other Terms.
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Section 1.03 Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding."
Section 1.04 Interpretation.
In each Transaction Document, unless a contrary intention appears:
(ii) any definition of or reference to any statute, rule or regulation shall be construed as referring
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thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (iii) any reference herein to any Person shall be construed to include such Person's successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (iv) the words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (v) all references herein to Articles, Sections, Exhibits, Annexes and Schedules shall be construed to refer to Articles and Sections of, and Exhibits, Annexes and Schedules to, this Agreement and (vi) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
Section 1.05 Rates. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, Term XXXXX Reference Rate, Term XXXXX, Adjusted Term XXXXX, Daily Compounded XXXXX, Adjusted Daily Compounded XXXXX or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement (Dollar) or Canadian Benchmark Replacement), including whether the composition or characteristics of any such alternative,
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successor or replacement rate (including any Benchmark Replacement (Dollar) or any Canadian Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR, Term XXXXX Reference Rate, Term XXXXX, Adjusted Term XXXXX, Daily Compounded XXXXX, Adjusted Daily Compounded XXXXX or any other Benchmark (Dollar) or Canadian Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Benchmark Replacement Conforming Changes or Canadian Benchmark Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement (Dollar)) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR, Term XXXXX Reference Rate, Term XXXXX, Adjusted Term XXXXX, Daily Compounded XXXXX, Adjusted Daily Compounded XXXXX or any other Benchmark (Dollar) or Canadian Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
Section 1.06 Currency Conversion. For purposes of (i) complying with any requirement of this Agreement stated in Dollars and (ii) calculating any ratio or other test set forth in this Agreement, the amount of any Loan Asset denominated in an Eligible Currency other than Dollars shall be deemed to be the Dollar Equivalent of such amount of such Eligible Currency.
ARTICLE II
THE FACILITY
Section 2.01 Advances; I/O Notional Loan.
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would result therefrom or (ii) a Borrowing Base Deficiency exists or would result therefrom (or, as applicable for each such Eligible Currency, Advances Outstanding in such Eligible Currency shall exceed any of the Borrowing Base (AUD), the Borrowing Base (CAD), the Borrowing Base (EUR) or the Borrowing Base (GBP)). Notwithstanding anything to the contrary herein, no Lender shall be obligated to provide the Borrower with aggregate funds in connection with an Advance that would exceed such Xxxxxx's unused Commitment then in effect.
(ii) the I/O Notional Loan of such Lender, with appropriate insertions as to the date and interest amount, not to exceed the I/O Notional Loan Amount allocable to such Lender. For the avoidance of doubt, any note delivered in connection with an I/O Notional Loan shall be a zero principal balance note.
Section 2.02 Procedure for Advances.
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Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof) and an updated Loan Asset Schedule, and shall specify:
On the date of each Advance, upon satisfaction of the applicable conditions set forth in Article III, each Lender shall, in accordance with the Notice of Borrowing, either make available to the Borrower, in same day funds, (x) an amount equal to such Lender's Pro Rata Share of such Advance, for deposit by the Collateral Agent into the Principal Collection Subaccount or (y) an amount equal to such Lender's Pro Rata Share of such Advance, for deposit by the Collateral Agent into the Unfunded Exposure Account, as applicable. For the avoidance of doubt, each Advance and related increase in the Advances Outstanding shall be allocated ratably to each Lender in accordance with their respective Lender's Pro Rata Share as in effect before such increase. Any Lender which fails to remit its Pro Rata Share in connection with any Advance in accordance with this Section 2.02 shall constitute a Defaulting Lender, and the Borrower shall have all rights available to the Borrower pursuant to Section 2.19.
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on the last day of the Revolving Period, the amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Exposure Amount, the Borrower shall request an Advance in the amount of such shortfall (the "Unfunded Exposure Amount Shortfall"). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund its Pro Rata Share of such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower's failure to satisfy any of the conditions precedent set forth in Section 3.02) other than an Event of Default; provided that no such Advance may cause the Advances Outstanding to exceed the Borrowing Base (Aggregate) and, as applicable for such Eligible Currency, the Borrowing Base (AUD), the Borrowing Base (CAD), the Borrowing Base (EUR) or the Borrowing Base (GBP), each as then in effect.
Section 2.03 Determination of Yield. The Administrative Agent shall determine the Yield in respect of all Advances and the I/O Notional Loan (including unpaid Yield related thereto, if any, due and payable on a prior Payment Date) to be paid by the Borrower on each Payment Date for the related Remittance Period and shall advise the Servicer thereof on or prior to the third (3rd) Business Day prior to such Payment Date.
The Borrower shall be liable only for payment of Yield in the amount calculated by the Administrative Agent, and no Lender shall have any claim against the Borrower for any miscalculation of Yield by the Administrative Agent, any deficiency in Yield resulting from a miscalculation of Yield by the Administrative Agent and any failure of the Borrower to pay any Yield that would have been due absent a miscalculation of Yield by the Administrative Agent, which failure of the Borrower to pay shall not result in an Unmatured Event of Default or Event of Default; provided that the Borrower shall be liable for any amount of Yield it fails to pay after the Administrative Agent has submitted any written correction of such miscalculation to the Borrower, which written correction includes such amount as part of the Yield to be paid by the Borrower on the related Payment Date.
Section 2.04 Remittance Procedures. The Servicer shall instruct the Collateral Agent by delivery of the Servicing Report and, if the Servicer fails to do so, the Administrative Agent may instruct the Collateral Agent, to apply funds on deposit in the Controlled Accounts, subject to Pari Passu Provisions as described in this Section 2.04; provided that, at any time after delivery of a Notice of Exclusive Control (and prior to any rescission of such Notice of Exclusive Control), the Administrative Agent shall instruct the Collateral Agent to apply funds on deposit in the Controlled Accounts as described in this Section 2.04.
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of any Equity Interest in the Borrower may have with respect to such distributions shall, notwithstanding anything to the contrary herein and notwithstanding any objection to, or rescission of, such filing, be fully subordinate in right of payment to the Obligations of the Borrower to the Secured Parties pursuant to the priorities of payment set forth in this Section
2.04. The foregoing sentence and the provisions of Section 2.04 shall constitute a "subordination agreement" within the meaning of Section 510(a) of the Bankruptcy Code. The Borrower and the Transferor hereby agree that they may only receive distributions from amounts available pursuant to clauses (ix) and (xiv) of Section 2.04(a), clauses (iv) and (ix) of Section 2.04(b) and clause (xii) of Section 2.04(c) or as permitted by Section 2.07 or Section 5.02(m).
Section 2.05 Instructions to the Collateral Agent and the Account Bank. All instructions and directions given to the Collateral Agent or the Account Bank by the Servicer, the Borrower or the Administrative Agent pursuant to Section 2.04 shall be in writing (including instructions and directions transmitted to the Collateral Agent or the Account Bank by email or by electronic transmission), and such written instructions and directions shall be delivered with a written certification that such instructions and directions are in compliance with the provisions of Section 2.04. The Servicer and the Borrower shall immediately transmit to the Administrative Agent by email or by electronic transmission a copy of all instructions and directions given to the Collateral Agent or the Account Bank by such party pursuant to Section 2.04. The Administrative Agent shall promptly transmit to the Servicer and the Borrower by email a copy of all instructions and directions given to the Collateral Agent or the Account Bank by the Administrative Agent pursuant to Section 2.04. If either the Administrative Agent or the Collateral Agent disagrees with the computation of any amounts to be paid or deposited by the Borrower or the Servicer under Section 2.04 or otherwise pursuant to this Agreement, or upon their respective instructions, it shall so notify the Borrower, the Servicer and the Collateral Agent or the Administrative Agent, as applicable, in writing and in reasonable detail to identify the specific disagreement. If such disagreement cannot be resolved within two (2) Business Days, the determination of the Administrative Agent as to such amounts shall be conclusive and
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binding on the parties hereto absent manifest error. In the event the Collateral Agent or the Account Bank receives instructions from the Servicer or the Borrower which conflict with any instructions received from the Administrative Agent, the Collateral Agent or the Account Bank, as applicable, shall rely on and follow the instructions given by the Administrative Agent; provided that the Collateral Agent or the Account Bank, as applicable, shall promptly notify the Servicer or the Borrower of such conflicting instructions.
Section 2.06 Borrowing Base Deficiency Payments.
(ii) repay Advances Outstanding (together with any Breakage Fees in respect of the amount so prepaid), (iii) subject to the approval of the Administrative Agent (other than in the case of Specified Loan Assets), in its sole discretion, Grant additional Eligible Loan Assets, (iv) enter into commitments to sell certain Eligible Loan Assets in accordance with Section 2.07, and/or
(v) deliver an Equity Cure Notice pursuant to Section 2.06(c) (and after delivery of such Equity Cure Notice, the Borrower shall eliminate such Borrowing Base Deficiency in accordance with such Section 2.06(c)).
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equityholder(s) have irrevocably agreed to contribute such capital, in an aggregate amount sufficient to cure such Borrowing Base Deficiency (in combination with the other cures thereof permitted under Section 2.06(a)), and (C) the Transferor intends to contribute such funds to the Borrower in the form of an additional capital contribution; and
Section 2.07 Sale of Loan Assets; Affiliate Transactions.
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Administrative Agent shall have the right to determine (in a commercially reasonable manner) whether the amount so deposited is sufficient to satisfy the foregoing requirements and (B) the deposit of such funds into the Collection Account may result from the sale of such Warranty Breach Loan Asset pursuant to Section 2.07(a); or
Notwithstanding anything herein to the contrary, in the event that the conditions or events which caused such Loan Asset to be a Warranty Breach Loan Asset are no longer continuing prior to the expiration of the aforementioned ten (10) Business Day period, such Loan Asset shall cease to be a Warranty Breach Loan Asset and the requirements set forth in clauses (i), (ii) and
Upon confirmation of the deposit of the amounts set forth in Section 2.07(b)(i) or the proceeds of any sale pursuant to Section 2.07(b)(iii) into the Collection Account or the delivery by the Borrower of a Substitute Eligible Loan Asset for each Warranty Breach Loan Asset pursuant to Section 2.07(b)(ii) (the date of such confirmation or delivery, the "Release Date"), such Warranty Breach Loan Asset and Related Asset shall be removed from the Collateral and, as applicable, the Substitute Eligible Loan Asset and Related Asset shall be included in the Collateral. On the Release Date of each Warranty Breach Loan Asset, the Collateral Agent, for the benefit of the Secured Parties, shall automatically and without further action be deemed to release to the Borrower, without recourse, representation or warranty and all the right, title and interest and any Lien of the Collateral Agent, for the benefit of the Secured Parties in, to and under the Warranty Breach Loan Asset and any Related Asset and all future monies due or to become due with respect thereto shall be released.
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sub-clause (y) above, if the "fair market value" determined by the Servicer is not acceptable to the Administrative Agent, the Servicer may retain an Approved Valuation Firm to value such Loan Asset, and such Approved Valuation Firm's valuation shall become the fair market value of such Loan Asset. Notwithstanding the foregoing, the Borrower shall be permitted to sell, without complying with the restrictions in this clause (d), (i) any Loan Asset to any Affiliate of the Borrower if the Required Lenders have consented to such sale in their sole discretion or (ii) any Defaulted Loan, any Loan Asset that has an Assigned Value of zero, any Margin Stock or Equity Security to any Affiliate of the Borrower; provided, in the case of this clause (ii), during the continuance of an Event of Default, the prior written consent of the Administrative Agent shall be required for any such sale.
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of such sale, substitution or release (and not as of the actual Cut-Off Date for such repurchase), and (ii) if such Value Adjustment Event has not been cured, such repurchase shall be subject to the prior consent of the Administrative Agent in its sole discretion and the Advance Rate with respect to such Loan Asset, and each calculation pursuant to the definitions of "Advance Rate" and "Value Adjustment Event", shall be determined as of the Cut-Off Date for such repurchase; and
(i) if such repurchase is consummated within 90 days of the date of such sale, substitution or release, such repurchase shall not require the consent of the Administrative Agent, provided, that the Advance Rate with respect to such Loan Asset and each calculation to be made as of the applicable Cut-Off Date pursuant to the definitions of "Advance Rate" and "Value Adjustment Event" shall instead be determined as of the date such Loan Asset was sold, substituted or released (and not as of the actual Cut-Off Date for such repurchase), and (ii) if such repurchase is consummated more than 90 days from the date of such sale, substitution or release, then the Advance Rate with respect to such Loan Asset, and each calculation pursuant to the definitions of "Advance Rate" and "Value Adjustment Event", shall be determined as of the Cut-Off Date for such repurchase.
Section 2.08 Payments and Computations, Etc.
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Rate for each day beginning on, and including, the Advance Date with respect to such Advance and ending on, but excluding, the date such Advance is repaid in full.
Section 2.09 Unused Fee. The Borrower shall pay, in accordance with Section 2.04, pro rata to each Lender, an unused fee (the "Unused Fee") payable in arrears for each Remittance Period, equal to the sum of the products for each day during such Remittance Period of (a) one divided by three hundred and sixty (360), (b) the applicable Unused Fee Rate and (c) the positive difference, if any, of the Facility Amount less the greater of (i) the Advances Outstanding on such date and (ii) the Minimum Utilization.
Section 2.10 Increased Costs; Capital Adequacy.
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deposits with or for the account of, or credit extended by, any Lender or any Affiliate, participant, successor or assign thereof (each of which shall be an "Affected Party");
and the result of any of the foregoing shall be to increase the cost to or impose a cost upon such Affected Party of funding or making or maintaining any Advance or of maintaining its obligation to make any such Advance or otherwise performing its obligations under the Transaction Documents or to increase the cost to such Affected Party or to reduce the amount of any sum received or receivable by such Affected Party, whether of principal, interest or otherwise or to require any payment calculated by reference to the amount of interest or loans received or held by such Affected Party, then the Borrower will pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional costs incurred or reduction suffered.
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such compensation; provided that the Borrower shall not be required to compensate any Affected Party pursuant to this Section 2.10 for any increased costs or reductions incurred more than one hundred and eighty (180) days prior to the date that such Affected Party notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Affected Party's 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 one hundred and eighty (180)-day period referred to above shall be extended to include the period of retroactive effect thereof.
Section 2.11 Taxes.
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Recipient and any expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. All payments in respect of this indemnification shall be made within ten (10) days from the date a written demand therefor is delivered to the Borrower. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(ii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Transaction Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Transaction Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 2.11(e).
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any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Without limiting the generality of the foregoing:
U.S. federal withholding Tax pursuant to the "business profits" or "other income" article of such tax treaty;
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completed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax.
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Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.11(h), in no event will the indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 2.11(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and the indemnification payments or Additional Amounts giving rise to such refund not been deducted, withheld, or otherwise imposed and the indemnification payments or Additional Amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
Section 2.12 Grant of a Security Interest; Collateral Assignment of Agreements.
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obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
The foregoing Grant shall, for the purpose of determining the property subject to the Lien of this Agreement, be deemed to include any securities and any investments Granted to the Collateral Agent by or on behalf of the Borrower, whether or not such securities or investments satisfy the criteria set forth in the definitions of "Eligible Loan Asset" or "Permitted Investments," as the case may be.
The parties hereto agree that such collateral assignment to the Collateral Agent, for the benefit of the Secured Parties, shall terminate upon the Collection Date.
Section 2.13 Evidence of Debt. The Administrative Agent shall maintain, solely for this purpose as a non-fiduciary agent of the Borrower, at its address referred to in Section 12.02 a copy of each Assignment and Acceptance and participation agreement delivered to and accepted by it and a register for the recordation of the names and addresses and interests of the Lenders (including principal amounts of and stated interest on the Advances or stated interest on the I/O Notional Loan, as applicable) (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Register as a Lender under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time during business hours and from time to time upon reasonable prior notice. No Advance or I/O Notional Loan hereunder shall be assigned or sold, in whole or in part without registering such assignment or sale on the Register. Failure to make any such recordation or any error in such recordation, however, shall not affect Borrower's obligations in respect of any Advance and the I/O Notional Loan.
Section 2.14 Release of Loan Assets. The Lien granted pursuant to this Agreement shall be automatically released with the respect to the following: (a) any Loan Asset (and the Related Asset) sold or substituted in accordance with the applicable provisions of Section 2.07, (b) any Loan Asset (and the Related Asset) with respect to which all amounts have been paid in full by
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the related Obligor and deposited in the Collection Account and (c) the entire Collateral following the Collection Date. The Collateral Agent, for the benefit of the Secured Parties, shall, at the sole expense of the Servicer and the Borrower and at the direction of the Administrative Agent, execute such documents and instruments of release as may be prepared by the Servicer on behalf of the Borrower, give notice of such release to the Collateral Custodian (in the form of Exhibit J) (unless the Collateral Custodian and Collateral Agent are the same Person) and take other such actions as shall reasonably be requested by the Borrower to effect such release of the Lien created pursuant to this Agreement. Upon receiving such notification by the Collateral Agent as described in the immediately preceding sentence, if applicable, the Collateral Custodian shall deliver the Required Loan Documents to the Borrower.
Section 2.15 Treatment of Amounts Received by the Borrower. Amounts received by the Borrower pursuant to Section 2.07 on account of Loan Assets shall be treated as payments of Principal Collections or Interest Collections, as applicable, on Loan Assets hereunder.
Section 2.16 Prepayment; Termination; Reduction.
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Yield and Unused Fees (pro rata with respect to the portion of the Facility Amount so reduced), any Breakage Fees, Increased Costs, all accrued and unpaid costs and expenses of the Administrative Agent and Lenders and any Prepayment Premium pro rata to each Lender. Any Termination/Reduction Notice relating to any reduction or termination pursuant to this Section 2.16(b) shall be irrevocable. The Commitment and I/O Notional Loan Amount of each Lender shall be reduced by an amount equal to its Pro Rata Share (prior to giving effect to any reduction of Commitments hereunder) of the aggregate amount of any reduction under this Section 2.16(b).
Section 2.17 Collections and Allocations.
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Collateral Agent to withdraw from the Collection Account any deposits thereto constituting Excluded Amounts if the Servicer has, prior to such withdrawal and consent, delivered to the Administrative Agent a report setting forth the calculation of such Excluded Amounts in form and substance satisfactory to the Administrative Agent in its reasonable discretion.
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priority of payments set forth in Section 2.04(a), Section 2.04(b) and Section 2.04(c). The Lenders and the Administrative Agent hereby instruct the Collateral Agent to apply the Available Collections and all such other amounts described in Section 2.04(a), Section 2.04(b) and Section 2.04(c) in accordance with Section 2.04(a), Section 2.04(b) and Section 2.04(c); provided that such payments shall be subject to availability of such funds pursuant to Section 2.04(a), Section 2.04(b) and Section 2.04(c).
(1) Business Day's prior written notice to the Administrative Agent and the Collateral Agent of any such conversion.
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Section 2.18 Reinvestment of Principal Collections.
On the terms and conditions hereinafter set forth as certified in writing to the Collateral Agent and the Administrative Agent, prior to the end of the Revolving Period, the Borrower (or the Servicer on its behalf) may, to the extent of any Principal Collections on deposit in the Principal Collection Subaccount:
3.04 have been satisfied;
4.02 and 4.03 hereof shall continue to be correct in all material respects (or, in the case of any representation and warranty that is already qualified by materiality, subject to the materiality standard set forth therein), except to the extent relating to an earlier date; and
Upon the satisfaction of the applicable conditions set forth in this Section 2.18 (as certified by the Borrower to the Collateral Agent and the Administrative Agent, which certification shall be deemed to be provided by delivery of the related acquisition instruction or trade ticket), the Borrower (or the Servicer on its behalf) or, after the delivery of a Notice of Exclusive Control which has not been rescinded, the Collateral Agent, will instruct the Account Bank to release funds from the Principal Collection Subaccount as directed by the Servicer in an amount not to exceed the lesser of (x) the amount requested by the Servicer for reinvestment or repayment and (y) the amount on deposit in the Principal Collection Subaccount on such day.
Section 2.19 Defaulting Lenders.
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shall be deemed to have executed and delivered such Assignment and Acceptance without any action on the part of the Non-Consenting Lender or Defaulting Lender.
Section 2.20 Benchmark Replacement Setting.
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respect thereto, (ii) the implementation of any Benchmark Replacement (Dollar), and (iii) the effectiveness of any Benchmark Replacement Conforming Changes.
(ii) such other benchmark rate designated by the Administrative Agent and the Borrower and consented to by the Required Lenders. Except as set forth in the immediately preceding sentence, the designation of such alternative benchmark rate shall become effective without any further action or consent of any other party to this Agreement. If (x) the circumstances described above have arisen and (y) the Benchmark for such currency cannot be determined for such Remittance Period in accordance with the definition of the applicable Benchmark, then until an alternate benchmark rate shall be determined in accordance with this clause (d), for any Advance denominated in such currency, the Benchmark shall be equal to the benchmark for the Administrative Agent's cost of funds in such currency (as determined in good faith by the Administrative Agent by written notice to the Borrower); provided that the Borrower shall have the right upon written notice to the Administrative Agent to convert any such Advance to be denominated in Dollars bearing interest at the Benchmark (Dollar).
Any determination, decision or election that may be made by the Administrative Agent pursuant to this Section 2.20, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and, except as expressly provided herein, may be made in the Administrative Agent's sole discretion and without consent from any other party to this Agreement or any other Transaction Document.
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Benchmark Replacement, the Administrative Agent will have the right, with the consent of the Borrower, to make Canadian Benchmark Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Canadian Benchmark Conforming Changes will become effective upon receipt of the consent of the Borrower but without any further action or consent of any other party to this Agreement or any other Transaction Document.
(B) the Canadian Benchmark Replacement Date with respect thereto, (ii) the implementation of any Canadian Benchmark Replacement, and (iii) the effectiveness of any Canadian Benchmark Conforming Changes.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Effectiveness.
precedent that:
necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all Applicable Law;
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Section 3.02 Conditions Precedent to All Advances. Each Advance to the Borrower from the Lenders shall be subject to the further conditions precedent that:
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Collateral Custodian and the Collateral Agent), no later than 11:00 a.m. (i) at least one (1) Business Day before the Business Day on which the Advance is to be made for Dollar Advances, (ii) at least two (2) Business Days before the Business Day on which the Advance is to be made for CAD Advances, Euro Advances or GBP Advances or (iii) at least three (3) Business Days before the Business Day on which the Advance is to be made for AUD Advances: (A) a Notice of Borrowing and an Officer's Certificate (which may be included as part of the Notice of Borrowing) computed as of the proposed Advance Date and after giving effect thereto and to the purchase by the Borrower of the Eligible Loan Assets to be purchased by it on such Advance Date, demonstrating that the Investment Criteria are satisfied on the date on which the Borrower (or the Servicer on its behalf) commits to purchase such Eligible Loan Asset (and after giving effect to such commitment), (B) a Borrowing Base Certificate, (C) a Loan Asset Schedule, (D) an Approval Notice (for any such Loan Asset (other than a Specified Loan Asset) added to the Collateral on the related Advance Date) and (E) such additional information, approvals, documents, certificates and reports as may be reasonably requested by the Administrative Agent;
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agreement, transfer document or instrument relating to each Loan Asset so Pledged evidencing the assignment of such Loan Asset from any prior third party owner thereof directly to the Borrower, and (3) other than in the case of a Noteless Loan, an e-mailed copy of the duly executed original promissory notes of the Loans so Pledged (and, in the case of any Noteless Loan, a fully executed assignment agreement);
4.02 and 4.03 are true and correct in all material respects (or, in the case of any representation and warranty that is already qualified by materiality, subject to the materiality standard set forth therein), and there exists no breach of any covenant contained in Sections 5.01, 5.02, 5.03 and 5.04 in any material respect (or, in the case of any covenant that is already qualified by materiality, subject to the materiality standard set forth therein) before and after giving effect to the Advance to take place on such Advance Date and to the application of proceeds therefrom, on and as of such day as though made on and as of such date (other than any representation and warranty that is made as of a specific date);
Effect;
which are prior to the lien of the Collateral Agent on the Eligible Loan Assets to be Granted on such Advance Date;
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Section 3.03 Advances Do Not Constitute a Waiver. No Advance made hereunder shall constitute a waiver of any condition to any Lender's obligation to make such an Advance unless such waiver is in writing and executed by such Xxxxxx.
Section 3.04 Conditions to Acquisition of Loan Assets. Each Grant of an additional Eligible Loan Asset pursuant to Section 2.06, a Substitute Eligible Loan Asset pursuant to Section 2.07(b), an additional Eligible Loan Asset pursuant to Section 2.18 or any other Grant of
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a Loan Asset hereunder shall be subject to the further conditions precedent that (as certified to the Collateral Agent by the Borrower):
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4.03 are true and correct in all material respects, and there exists no material breach of any covenant contained in Sections 5.01, 5.02, 5.03 and 5.04 before and after giving effect to the Grant to take place on such Cut-Off Date, on and as of such day as though made on and as of such date (other than any representation and warranty that is made as of a specific date).
ARTICLE IV REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants, as of each Measurement Date and as of each other date provided under this Agreement or the other Transaction Documents on which such representations and warranties are required to be (or deemed to be) made (unless a specific date is specified below):
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transaction of such business or its ownership of the Loan Assets and the Collateral requires such qualification.
(y) any consents, licenses, approvals, authorizations, registrations or declarations which the failure to obtain would not reasonably be expected to result in a Material Adverse Effect.
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(aa) Instructions to Obligors. The Collection Account is the only account to which Obligors, agent banks or administrative agents on the Loan Assets have been instructed by the Borrower, or the Servicer on the Borrower's behalf, to send Principal Collections and Interest Collections on the Collateral. The Borrower has not granted any Person other than the Collateral Agent, on behalf of the Secured Parties, a Lien on the Collection Account.
(bb) Investment Company Act. The Borrower is not required to register as an "investment company" under the provisions of the 1940 Act.
(cc) Compliance with Law. The Borrower (i) has complied in all material respects with all Applicable Law to which it may be subject and (ii) is not in violation in any material respect of any order of any Governmental Authority or other board or tribunal. The Borrower has not received any notice that it is not in compliance in any respect with any of the requirements of the foregoing. The Borrower has maintained in all material respects all records required to be maintained by any applicable Governmental Authority.
(dd) Collections. The Borrower acknowledges that all Available Collections received by it or its Affiliates with respect to the Collateral Granted hereunder are held and shall be held in trust for the benefit of the Collateral Agent, on behalf of the Secured Parties until deposited into the Collection Account within two (2) Business Days after receipt as required herein.
(ee) Set-Off, etc. No Eligible Loan Asset in the Collateral has been compromised, adjusted, extended, satisfied, subordinated, rescinded, set-off or modified by the Borrower, the Transferor or the Obligor thereof following the related Cut-Off Date, and no Eligible Loan Asset in the Collateral is subject to compromise, adjustment, extension, satisfaction, subordination, rescission, set-off, counterclaim, defense, abatement, suspension, deferment, deduction, reduction, termination or modification, whether arising out of transactions concerning the Collateral or otherwise, by the Borrower, the Transferor or the Obligor with respect thereto following the related Cut-Off Date, except, in each case, for amendments, extensions and modifications, if any, to such Collateral otherwise permitted pursuant to Section 6.04(a) of this Agreement and in accordance with the Servicing Standard.
(ff) Full Payment. As of the applicable Cut-Off Date thereof, the Borrower has no knowledge of any fact which should lead it to expect that any Loan Asset will not be paid in full.
(gg) Environmental. With respect to each item of Related Collateral as of the applicable Cut-Off Date for the Loan Asset related to such Related Collateral, to the actual knowledge of a Responsible Officer of the Borrower: (i) the related Obligor's operations comply in all material respects with all applicable Environmental Laws; (ii) none of the related Obligor's operations is the subject of a federal or state investigation evaluating whether any remedial action, involving expenditures, is needed to respond to a release of any Materials of Environmental Concern into the environment; and (iii) the related Obligor does not have any
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material contingent liability in connection with any release of any Materials of Environmental Concern into the environment, in each case, except as otherwise specified in the Underlying Instruments pertaining to such Loan Asset. As of the applicable Cut-Off Date for the Loan Asset related to such Related Collateral, none of the Borrower, the Transferor nor the Servicer has received any written or verbal notice of, or inquiry from any Governmental Authority regarding, any material violation, alleged material violation, material non-compliance, material liability or potential material liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Related Collateral, nor does any such Person have knowledge or reason to believe that any such notice will be received or is being threatened, in each case, except as otherwise specified in the Underlying Instruments pertaining to such Loan Asset.
(hh) Anti-Corruption Laws; Anti-Money Laundering Laws; Sanctions.
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(jj) Accuracy of Representations and Warranties. Each representation or warranty by the Borrower contained herein, in any Transaction Document or in any certificate or other document furnished by the Borrower pursuant hereto or in connection herewith is true and correct in all material respects (or, in the case of any representation and warranty that is already qualified by materiality, subject to the materiality standard set forth therein).
(kk) Security Interest.
entitlements":
the Controlled Accounts and the securities intermediary for each Controlled Account has agreed to treat all assets credited to such Controlled Account as "financial assets" within the meaning of the applicable UCC;
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entitlement orders and instructions of the Borrower, the Servicer and the Collateral Agent (acting at the direction of the Administrative Agent) in accordance with the Transaction Documents, including causing cash to be invested in Permitted Investments; provided that, upon the delivery of a Notice of Exclusive Control by the Collateral Agent (acting at the direction of the Administrative Agent) and until such Notice of Exclusive Control has been rescinded, the securities intermediary has agreed to only follow the entitlement orders and instructions of the Collateral Agent, on behalf of the Secured Parties, including with respect to the investment of cash in Permitted Investments;
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(ll) Substitutions and Sales of Loan Assets to Affiliates. In connection with each sale of a Loan Asset to the Transferor (or an Affiliate thereof) pursuant to Section 2.07(a), as applicable, the Borrower has determined, in its reasonable business judgment (and without consideration of any benefits to the Transferor (or such Affiliate thereof)), that such sale or substitution, as applicable, is in the Borrower's best business interest.
(mm) Borrower LLC Agreement in Effect. The Borrower LLC Agreement remains in full force and effect and there exists no breach of, default under, or threatened breach of, the Borrower LLC Agreement by the Borrower or the Transferor.
(nn) Beneficial Ownership Certification. As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
Section 4.02 Representations and Warranties of the Borrower Relating to this Agreement and the Collateral. The Borrower hereby represents and warrants, as of the Closing Date, as of each applicable Cut-Off Date (solely with respect to the relevant Loan Assets being pledged as of such Cut-Off Date), as of each Measurement Date and as of each other date
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provided under this Agreement or the other Transaction Documents on which such representations and warranties are required to be (or deemed to be) made (unless a specific date is specified below):
Section 4.03 Representations and Warranties of the Servicer. The Servicer hereby represents and warrants, as of each Measurement Date and as of each other date provided under this Agreement or the other Transaction Documents on which such representations and warranties are required to be (or deemed to be) made (unless a specific date is specified below):
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conduct its business as such business is presently conducted and to enter into and perform its obligations pursuant to this Agreement.
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approvals, authorizations, consents, orders, licenses or other actions which the failure to obtain would not reasonably be expected to result in a Material Adverse Effect.
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Act, or any regulations issued pursuant thereto, including, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.
(y) located, organized or resident in a Sanctioned Country.
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Section 4.04 Representations and Warranties of the Collateral Agent. The Collateral Agent in its individual capacity and as Collateral Agent represents and warrants as follows:
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Section 4.05 Representations and Warranties of the Collateral Custodian. The Collateral Custodian in its individual capacity and as Collateral Custodian represents and warrants as follows:
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not conflict with, result in any breach of its articles of incorporation or bylaws or any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which the Collateral Custodian is a party or by which it or any of its property is bound.
ARTICLE V GENERAL COVENANTS
Section 5.01 Affirmative Covenants of the Borrower.
From the Closing Date until the Collection Date:
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(iii) other than for U.S. federal income tax purposes, hold itself out to the public and all other Persons as a legal entity separate from the Transferor and any other Person; (iv) file its own tax returns, if any, as may be required under Applicable Law, to the extent it is (A) not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for tax purposes of another taxpayer, and pay any Taxes so required to be paid under Applicable Law in accordance with the terms of this Agreement; (v) maintain its assets and liabilities separate and distinct from those of each other Person, and not commingle its assets with assets of any other Person; (vi) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (vii) maintain separate financial statements, except to the extent that the Borrower's financial and operating results are consolidated with those of the Transferor and/or any other Affiliate of the Borrower in consolidated financial statements; provided that appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from the Transferor and/or any other Affiliate of the Borrower and to indicate that the Borrower's assets and credit are not available to satisfy the debts and other obligations of the Transferor and/or any other Affiliate of the Borrower or any other Person; (viii) pay its own liabilities only out of its own funds; (ix) maintain an arm's-length relationship with its Affiliates and not enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arm's length transaction (except for capital contributions or capital distributions permitted under the terms and conditions of the Borrower's organizational document and properly reflected on the books and records of the Borrower); (x) pay the salaries of its own employees, if any; (xi) not hold out its credit or assets as being available to satisfy the obligations of any other Person; (xii) allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate; (xiii) to the extent used, 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; provided, however, that the foregoing shall not require any of the Borrower's members to make additional capital contributions; (xvii) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; (xviii) not acquire the obligations or any securities of its Affiliates; and (xix) not divide or permit any division of the Borrower. Where necessary, the Borrower will obtain proper authorization from its members for limited liability company action.
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Applicable Law where the failure to preserve and maintain such qualification would reasonably be expected to have a Material Adverse Effect.
(3) Business Days of the Borrower's or the Servicer's actual knowledge of the occurrence of any default by an Obligor under any Loan Asset or any Bankruptcy Event with respect to any Obligor under any Loan Asset.
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circumstance, notify the Administrative Agent and each Lender of any event or other circumstance that is reasonably likely to have a Material Adverse Effect.
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reasonably expected to have a Material Adverse Effect on the Collateral, the Transaction Documents, the Collateral Agent's security interest in the Collateral, or the Borrower.
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in the Borrower's interests in all of the Collateral being Granted hereunder including the filing of a UCC financing statement in the applicable jurisdiction adequately describing the Collateral (which may include an "all asset" filing), and naming the Borrower as debtor and the Collateral Agent as the secured party, and filing continuation statements, amendments or assignments with respect thereto in such filing offices, (including any amendments thereto or assignments thereof), (iv) permit the Administrative Agent or any Lender or their respective agents or representatives to visit the offices of the Borrower during normal office hours and upon reasonable advance notice examine and make copies of all documents, books, records and other information concerning the Collateral and discuss matters related thereto with any of the officers or employees of the Borrower having knowledge of such matters; provided that, other than after the occurrence and during the continuance of an Event of Default, such inspections shall be limited to once per year and (v) take all additional action that the Administrative Agent, any Lender or the Collateral Agent may reasonably request to perfect, protect and more fully evidence the respective first priority perfected security interests of the parties to this Agreement in the Collateral, or to enable the Administrative Agent or the Collateral Agent to exercise or enforce any of their respective rights hereunder. So long as no Event of Default or Servicer Default has occurred and is continuing, no more than one such visit or inspection per year described in clause (iv) of the preceding sentence shall be at the expense of the Borrower (which visit, inspection or audit shall, if reasonably practicable, be consolidated with any visit, inspection or audit under Section 6.10, Section 6.11 and Section 11.10).
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accordance with GAAP and set aside on its books from its earning for each fiscal year all such proper reserves in accordance with GAAP.
(aa) Performance of Covenants. The Borrower shall observe, perform and satisfy all the terms, provisions, covenants and conditions required to be observed, performed or satisfied by it, and shall pay when due all costs, fees and expenses required to be paid by it, under the Transaction Documents. The Borrower shall pay and discharge all Taxes, levies, liens and other charges on it or its assets and on the Collateral that, in each case, in any manner would create any lien or charge upon the Collateral, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided in accordance with GAAP.
(bb) Tax Treatment. The Borrower, the Transferor and the Lenders shall treat the Advances advanced hereunder (other than the I/O Notional Loan) as indebtedness of the sole owner of the Borrower for U.S. federal income tax purposes and to file any and all tax forms in a manner consistent therewith.
(cc) Maintenance of Records. The Borrower will maintain records with respect to the Collateral and the conduct and operation of its business with no less a degree of prudence than if the Collateral were held by the Borrower for its own account and will furnish the Administrative Agent and each Lender, upon the reasonable request by the Administrative Agent, information with respect to the Collateral and the conduct and operation of its business.
(dd) Obligor Notification Forms. The Borrower shall furnish the Collateral Agent and the Administrative Agent with an appropriate power of attorney, in the form attached hereto as Exhibit N or O, as applicable, to send (at the Administrative Agent's discretion on the Collateral Agent's behalf, after the occurrence of an Event of Default and with prior written notice (which may be provided by e-mail) to the Borrower) Obligor notification forms to give notice to the Obligors of the Collateral Agent's interest in the Collateral and the obligation to make payments as directed by the Administrative Agent on the Collateral Agent's behalf.
(ee) Officer's Certificate. On each anniversary of the date of this Agreement, the Borrower shall deliver an Officer's Certificate, in form and substance acceptable to the Lenders and the Administrative Agent, providing (i) a certification, based upon a review and summary of UCC search results, that there is no other interest in the Collateral perfected by filing of a UCC financing statement other than in favor of the Collateral Agent and (ii) a certification, based upon a review and summary of tax and judgment lien searches satisfactory to the Administrative Agent, that there is no other interest in the Collateral based on any tax or judgment lien.
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(ff) Continuation Statements. The Borrower shall, not earlier than six (6) months and not later than three (3) months prior to the fifth (5th) anniversary of the date of filing of the financing statement referred to in Schedule I hereto or any other financing statement filed pursuant to this Agreement or in connection with any Advance hereunder, unless the Collection Date shall have occurred:
(gg) Disregarded Entity. The Borrower will be disregarded as an entity separate from its owner pursuant to Treasury Regulations Section 301.7701-3(b)(ii), and neither the Borrower nor any other Person on its behalf shall make an election to be treated as other than an entity disregarded from its owner under Treasury Regulations Section 301.7701-3(c).
(hh) Notices; Material Information, etc. The Borrower shall, within five (5) Business Days after filing, provide to the Administrative Agent written notification of the filing of any litigation against the Borrower or the Transferor which, if a judgment were to be obtained by the plaintiff, would result in the occurrence of an Event of Default or otherwise cause a Material Adverse Effect.
(jj) Other Information. The Borrower shall deliver, (i) promptly following the Administrative Agent's request, in any event within five (5) days of such request, such other information, financial or otherwise, with respect to the Borrower and the Collateral that is in the possession of (or reasonably obtainable without undue burden by) the Borrower or the Servicer, as the Administrative Agent may reasonably request from time to time and (ii) promptly following any change (but in no event later than two (2) Business Days after such change) in the
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information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification.
(kk) Change of Approved Valuation Agent. The Borrower will provide the Administrative Agent with written notice of any change of the valuation firm or valuation agent acting as the Approved Valuation Agent for an Eligible Loan Asset that is an Asset Based Loan promptly upon receiving noticing or having knowledge thereof.
Section 5.02 Negative Covenants of the Borrower.
From the Closing Date until the Collection Date:
(viii) release, sell, transfer, convey or assign any Loan Asset unless in accordance with the Transaction Documents.
(i) file any insolvency, or reorganization case or proceeding, (ii) institute proceedings to have the Borrower be adjudicated bankrupt or insolvent, (iii) institute proceedings under any applicable insolvency law, (iv) seek any relief under any law relating to relief from debts or the protection of debtors, (v) consent to the filing or institution of bankruptcy or insolvency proceedings against the Borrower, (vi) file a petition seeking, or consent to, reorganization or relief with respect to the Borrower under any applicable federal or state law relating to bankruptcy or insolvency, (vii) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian, or any similar official of or for the Borrower, or a substantial part of its property, (viii) make any assignment for the benefit of its creditors, (ix) admit in writing its inability to pay its debts generally as they become due, or (x) take any action in furtherance of any of the foregoing.
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(i) through (xiii) of Section 2.04(a), and (z) on any Payment Date, from amounts available pursuant to Sections 2.04(a)(xiv) and 2.04(b)(ix).
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with such Opinions of Counsel and other documents and instruments as the Administrative Agent may request in connection therewith. The Borrower will not move, or consent to the Collateral Custodian or the Servicer moving, the Loan Files from the location thereof on the Closing Date, except as permitted by Section 11.08 or unless the Administrative Agent shall consent to such move in writing and the Servicer shall provide the Administrative Agent with such Opinions of Counsel and other documents and instruments as the Administrative Agent may request in connection therewith.
Section 5.03 Affirmative Covenants of the Servicer.
From the Closing Date until the Collection Date:
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hereunder or under any other agreement executed in connection herewith that would be inconsistent with its undertaking as the Servicer or in its capacity as the Transferor under the Purchase and Sale Agreement.
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Collateral. For purposes of this Section 5.03(m), any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Collateral or the Collateral Agent's or the Secured Parties' interest in the Collateral in excess of $500,000 or more shall be deemed to be expected to have such a Material Adverse Effect.
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thereof) notify the Administrative Agent and the Lenders if any representation or warranty set forth in Section 4.03 was incorrect at the time it was given or deemed to have been given and at the same time deliver to the Collateral Agent, the Administrative Agent and the Lenders a written notice setting forth in reasonable detail the nature of such facts and circumstances. In particular, but without limiting the foregoing, the Servicer shall notify the Administrative Agent and the Lenders in the manner set forth in the preceding sentence before any Cut-Off Date of any facts or circumstances within the knowledge of the Servicer which would render any of the said representations and warranties untrue at the date when such representations and warranties were made or deemed to have been made.
Section 5.04 Negative Covenants of the Servicer.
From the Closing Date until the Collection Date:
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binding with respect to the Servicer and such other matters as the Administrative Agent may reasonably request;
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tax counsel experienced in these matters to the effect that the ownership of such debt obligations will not cause the Borrower to be treated as a taxable mortgage pool for U.S. federal income tax purposes.
Section 5.05 Affirmative Covenants of the Collateral Agent. From the Closing Date until the Collection Date:
Section 5.06 Negative Covenants of the Collateral Agent.
From the Closing Date until the Collection Date, the Collateral Agent will not make any changes to the Collateral Agent Fees without the prior written approval of the Administrative Agent.
Section 5.07 Affirmative Covenants of the Collateral Custodian. From the Closing Date until the Collection Date:
Section 5.08 Negative Covenants of the Collateral Custodian.
From the Closing Date until the Collection Date:
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ARTICLE VI
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 6.01 Appointment and Designation of the Servicer.
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to the Administrative Agent in its sole discretion. Upon the appointment of a Replacement Servicer, the initial Servicer shall have no liability with respect to any action performed by the Replacement Servicer on or after the date that the Replacement Servicer becomes the successor to the Servicer.
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Administrative Agent, each Lender or any of their respective Affiliates, the Collateral Agent and the Servicer (other than, in each case, claims relating to such party's gross negligence, bad faith or willful misconduct) relating in any way to the custodial or collateral administration functions having been performed by the Administrative Agent or any of its Affiliates in accordance with the terms and provisions (including the standard of care) set forth in the Transaction Documents.
Section 6.02 Duties of the Servicer.
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Required Loan Documents (other than in electronic form), the Servicer will hold such Required Loan Documents in a fireproof safe or fireproof file cabinet, except while such Required Loan Documents are in the process of being delivered to or received from the Collateral Custodian;
It is acknowledged and agreed that in circumstances in which a Person other than the Borrower, the Transferor or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Underlying Instruments has the right to do so.
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Section 6.03 Authorization of the Servicer.
Section 6.04 Collection of Payments; Accounts.
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Servicing Standard. Unless the Administrative Agent consents, the Servicer may not waive, modify or otherwise vary any provision of an item of Collateral relating to any Eligible Loan Asset in any manner contrary to the Servicing Standard.
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hereby amended to include clause (i) above, and (iii) not to modify the law applicable to such issues hereunder, or (so long as this Agreement is in effect) under such other account agreements, without the prior written consent of each party hereto. All securities or other property underlying any Financial Assets credited to the Controlled Accounts in the form of securities or instruments shall be registered in the name of the Account Bank or if in the name of the Borrower or the Collateral Agent, Indorsed to the Account Bank, Indorsed in blank, or credited to another securities account maintained in the name of the Account Bank, and in no case will any Financial Asset credited to the Controlled Accounts be registered in the name of the Borrower, payable to the order of the Borrower or specially Indorsed to the Borrower, except to the extent the foregoing have been specially Indorsed to the Account Bank or Indorsed in blank.
Section 6.05 Realization Upon Loan Assets. The Servicer will use efforts consistent with the Servicing Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Related Collateral relating to a Defaulted Loan as to which no satisfactory arrangements can be made for collection of delinquent payments. In addition, the Servicer may, consistent with the Servicing Standard, sell or otherwise transfer, or if it deems advisable to maximize recoveries, hold any Defaulted Loan, equity or other securities received following a default, workout, restructuring or plan of reorganization or similar event under a Loan Asset. The Servicer will comply with the Servicing Standard and Applicable Law in realizing upon such Related Collateral, and employ practices and procedures consistent with the Servicing Standard to enforce all rights of a creditor against Obligors upon any foreclosure, repossession and/or sale of such Related Collateral at public or private sale in circumstances other than those described in the first sentence of this Section 6.05. Without limiting the
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generality of the foregoing and notwithstanding anything herein to the contrary, unless the Administrative Agent has specifically given instruction to the contrary pursuant to Section 7.02 during the continuance of an Event of Default, the Servicer may cause the sale of any such Related Collateral to the Servicer or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Servicer delivered to the Administrative Agent setting forth the Loan Asset, the Related Collateral, the sale price of the Related Collateral and certifying that such sale price is the fair value of such Related Collateral. In any case in which any such Related Collateral has suffered damage, the Servicer will not expend funds in connection with any repair or toward the foreclosure or repossession of such Related Collateral unless it determines at the time of such expenditure consistent with the Servicing Standard that such repair and/or foreclosure or repossession will increase the Recoveries by an amount greater than the amount of such expenses. The Servicer will remit, or cause to be remitted, to the Collection Account the Recoveries received in connection with the sale or disposition of Related Collateral relating to a Defaulted Loan.
Section 6.06 Servicer Compensation. As compensation for its activities hereunder and reimbursement for its expenses, the Servicer shall be entitled to be paid the Servicing Fee and reimbursed its reasonable out-of-pocket expenses as provided in Section 2.04.
Section 6.07 Payment of Certain Expenses by Servicer. The Servicer will be required to pay all expenses incurred by it in connection with its activities under this Agreement, including fees and disbursements of its independent accountants, Taxes imposed on the Servicer, expenses incurred by the Servicer in connection with payments and reports pursuant to this Agreement, and all other fees and expenses not expressly stated under this Agreement for the account of the Borrower. The Servicer may be reimbursed for any reasonable out-of-pocket expenses incurred hereunder (including out-of-pocket expenses paid by the Servicer on behalf of the Borrower), subject to the availability of funds pursuant to Section 2.04.
Section 6.08 Reports to the Administrative Agent; Account Statements; Servicer Information.
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Collateral Agent to withdraw on the related Payment Date from the applicable Collection Account and pay or transfer amounts set forth in such report in the manner specified herein. The Servicer shall notify the Administrative Agent on the Determination Date if the Servicing Report will not be delivered to the Lenders, the Administrative Agent and the Collateral Agent on such Determination Date.
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known to the Servicer that may be material to their future financial performance, (B) the Servicer's expectations, projections or plans for working out, restructuring, managing, selling or otherwise monetizing such Loan Asset and (C) any other information reasonably requested by the Administrative Agent (including a report listing, and providing an explanation of, all amendments, modifications and waivers made with respect to any Underlying Instrument related to any Loan Asset during the immediately preceding Remittance Period and all information provided to an Approved Valuation Firm) relating to any Loan Asset, and (y) promptly upon receipt by the Borrower or the Servicer, any valuation reports conducted by third parties in connection with the proposed investment with respect to the Obligor; provided, if required by the valuation provider, the Administrative Agent and any other party entitled to receive such valuation reports hereunder has entered into a customary access letter with the valuation provider and the Borrower has received a copy thereof. Upon demand by the Administrative Agent, the Servicer will provide such other information as the Administrative Agent may request with respect to any Obligor as long as such other information is in the possession of the Servicer or obtainable pursuant to the Underlying Instruments without undue burden, cost or expense.
Section 6.09 Annual Statement as to Compliance. The Servicer will provide to the Administrative Agent, each Lender and the Collateral Agent within ninety (90) days following the end of each fiscal year of the Servicer, commencing with the fiscal year ending on December 31, 2023, a certificate signed by a Responsible Officer of the Servicer certifying that (a) a review of the activities of the Servicer, and the Servicer's performance pursuant to this Agreement, for the fiscal period ending on the last day of such fiscal year has been made under such Person's supervision and (b) the Servicer has performed or has caused to be performed all of its obligations under this Agreement in accordance with the Servicing Standard throughout such year and no Servicer Default has occurred (other than any such Servicer Default which has previously been disclosed to the Administrative Agent in writing).
Section 6.10 Annual Independent Public Accountant's Servicing Reports. The Servicer will cause a nationally recognized auditing firm (who may also render other services to the Servicer) to furnish to the Administrative Agent, each Lender and the Collateral Agent within one hundred twenty (120) days following the end of each fiscal year of the Servicer, commencing with the fiscal year ending on December 31, 2023, a report covering such fiscal year to the effect that such auditors have applied certain agreed-upon procedures (a copy of which procedures are attached hereto as Schedule III, it being understood that the Servicer and
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the Administrative Agent will provide an updated Schedule III acceptable to each of the Servicer and the Administrative Agent reflecting any further amendments to such Schedule III prior to the issuance of the first such agreed-upon procedures report, a copy of which shall replace the then existing Schedule III) to certain documents and records relating to the Collateral under any Transaction Document, compared the information contained in the Servicing Reports and the Servicer's Certificates delivered during the period covered by such report with such documents and records and that no matters came to the attention of such auditors that caused them to believe that such servicing was not conducted in compliance with this Article VI, except for such exceptions as such auditors shall believe to be immaterial and such other exceptions as shall be set forth in such statement. In the event such firm of independent public accountants requires the Collateral Agent to agree to the procedures performed by such firm (with respect to any of the reports or certificates of such firm), or sign any other agreement in connection therewith, the Collateral Agent shall, upon direction from the Servicer so agree to the terms and conditions requested by such firm of independent public accountants as a condition to receiving documentation required by this Agreement; it being understood and agreed that the Collateral Agent shall deliver such letter of agreement or other agreement in conclusive reliance on such direction and shall make no inquiry or investigation as to, and shall have no obligation or responsibility in respect of, the terms of the engagement of such independent public accountants by the Servicer or the sufficiency, validity or correctness of the agreed upon procedures in respect of such engagement. Upon direction from the Servicer, the Collateral Agent shall be authorized, without liability on its part, to execute and deliver any acknowledgement or other agreement with such firm of independent public accountants required for the receipt of the certificates, reports or instructions provided for herein, which acknowledgement or agreement, to the extent so directed by the Servicer, may include, amongst other things, (i) acknowledgement that the procedures by the independent public accountants are sufficient for relevant purposes,
(ii) releases by the Collateral Agent of any claims, liabilities and expenses arising out of or relating to such independent public accountant's engagement, agreed-upon procedures or any report issued by such independent public accountants under any such engagement and acknowledgement of other limitations of liability in favor of the independent public accountants and (iii) restrictions or prohibitions on the disclosure of any such certificates, reports or other information or documents provided to it by such firm of independent public accountants.
Section 6.11 Procedural Review of Loan Assets; Access to Servicer and Servicer's Records.
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with the Servicer's business and operations. So long as no Event of Default or Servicer Default has occurred and is continuing, such visits and inspections shall occur only (x) upon two (2) Business Days' prior written notice and (y) no more than once in any calendar year and during normal business hours. During the existence of an Event of Default or a Servicer Default, there shall be no limit on the timing of such inspections and no prior notice will be required before any inspection. So long as no Event of Default or Servicer Default has occurred and is continuing, no more than one such visit or inspection per year shall be at the expense of the Borrower (which visit, inspection or audit shall, if reasonably practicable, be consolidated with any visit, inspection or audit under Section 5.01(u), Section 6.10, and Section 11.10).
Section 6.12 The Servicer Not to Resign. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the Servicer's determination that (a) the performance of its duties hereunder is or becomes impermissible under Applicable Law and (b) there is no reasonable action that the Servicer could take to make the performance of its duties hereunder permissible under Applicable Law; provided, for the avoidance of doubt, the foregoing limitations shall not prohibit the Servicer from assigning its obligations hereunder to a Qualified FE Affiliate in accordance with this Agreement. Any such determination permitting the resignation of the Servicer shall be evidenced as to clause (a) above by an Opinion of Counsel to such effect delivered to the Administrative Agent and each Lender. No such resignation shall become effective until a Replacement Servicer shall have assumed the responsibilities and obligations of the Servicer in accordance with Section 6.02.
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ARTICLE VII
EVENTS OF DEFAULT
Section 7.01 Events of Default. If any of the following events (each, an "Event of
Default") shall occur:
(ii) any other amount payable by the Borrower, the Servicer or the Transferor, including any Yield, any Unused Fee or any other fee; provided, that in the case of a default in payment under clause (ii), such failure to pay is not cured within three (3) Business Days after the same becomes due; or
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occur of (x) the date on which written notice of such failure is given to the Borrower and (y) the date on which the Borrower acquires knowledge thereof; it being agreed that the sale of any Loan Asset that is not an Eligible Loan Asset in accordance with the terms of Section 2.07 shall remedy the failure of any covenant related to such Loan Asset being an Eligible Loan Asset; or
(ii) and (iii), excluding payments actually made from insurance proceeds or as to which the insurer has not disputed coverage); or
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Documents shall become required to register as an "investment company" in accordance with the 1940 Act; or
(5) Business Days; or
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assignment of its rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of each of the Lenders and the Administrative Agent, which consent may be withheld by any Lender or the Administrative Agent in its sole and absolute discretion;
then the Administrative Agent or the Required Lenders, may, by notice to the Borrower, declare the "Facility Maturity Date" to have occurred; provided that, in the case of any event described in Section 7.01(f) above, the "Facility Maturity Date" shall be deemed to have occurred automatically upon the occurrence of such event. Upon any such declaration or automatic occurrence, (i) the Revolving Period shall end and the Borrower shall cease purchasing Loan Assets from the Transferor under the Purchase and Sale Agreement or from any other third party and shall cease originating Loan Assets, (ii) the Administrative Agent or the Required Lenders may declare the Advances to be immediately due and payable in full (without presentment, demand, protest or notice of any kind, all of which are hereby waived by the Borrower) and any other Obligations to be immediately due and payable, (iii) the Administrative Agent may terminate the Servicer by providing a Servicer Removal Notice in accordance with Section 6.01(b), and (iv) all proceeds and distributions in respect of the Collateral shall be distributed by the Collateral Agent (at the direction of the Administrative Agent) as described in Section 2.04(c) (provided that the Borrower shall in any event remain liable to pay such Advances Outstanding and all such amounts and Obligations immediately in accordance with Section 2.04(e)). In addition, upon any such declaration or upon any such automatic occurrence, the Collateral Agent, on behalf of the Secured Parties and at the direction of the Administrative Agent, shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other Applicable Law, which rights shall be cumulative. Without limiting any obligation of the Servicer hereunder, the Borrower confirms and agrees that the Collateral Agent, on behalf of the Secured Parties and at the direction of the Administrative Agent (or any designee thereof, including, the Servicer), following an Event of Default, shall, at its option, have the sole right to enforce the Borrower's rights and remedies under each Assigned Document, but without any obligation on the part of the Administrative Agent, the Lenders or any of their respective Affiliates to perform any of the obligations of the Borrower under any such Assigned Document. If any Event of Default shall have occurred, Applicable Margin shall be increased pursuant to the definition thereof, effective as of the date of the occurrence of such Event of Default, and shall apply on each day after the occurrence of such Event of Default.
Section 7.02 Additional Remedies of the Administrative Agent.
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reasonably deem satisfactory, any or all of the Collateral and apply the proceeds thereof to the Obligations.
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(y) that a foreclosure sale conducted in conformity with the principles set forth in various no action letters promulgated by the SEC staff (1) shall be considered to be a "public" sale for purposes of the UCC and (2) shall be considered to be commercially reasonable notwithstanding that a Secured Party purchases the Collateral at such a sale.
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power of substitution) in its name, place and stead and at its expense, in connection with the enforcement of the rights and remedies provided for in this Agreement, including without limitation the following powers: (i) to give any necessary receipts or acquittance for amounts collected or received hereunder, (ii) to make all necessary transfers of the Collateral in connection with any such sale or other disposition made pursuant hereto, (iii) to execute and deliver for value all necessary or appropriate bills of sale, assignments and other instruments in connection with any such sale or other disposition, the Borrower and the Servicer hereby ratifying and confirming all that such attorney (or any substitute) shall lawfully do hereunder and pursuant hereto, and (iv) to sign any agreements, orders or other documents in connection with or pursuant to any Transaction Document. Nevertheless, if so requested by the Collateral Agent or the Administrative Agent, the Borrower shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Agent or the Administrative Agent all proper bills of sale, assignments, releases and other instruments as may be designated in any such request; provided that, for the avoidance of doubt, no right under any power of attorney furnished under this Section 7.02(h) may be exercised except during the existence of an Event of Default.
Section 7.03 Option to Purchase Collateral.
In connection with any liquidation in full of the Collateral, including without limitation, (a) upon the termination of the Commitments following the occurrence and during the continuation of an Event of Default or (b) at the Facility Maturity Date, the Servicer (or its designated Affiliate (other than the Borrower) or managed fund) shall, subject to the additional requirements set forth in this Section 7.03 and as long as (1) the Servicer is not the defaulting party with respect to any such Event of Default and (2) the Servicer is not in breach of any material provision of this Agreement or any Transaction Document, have the right to commit to purchase all (but not less than all) of the Loan Assets included in the Collateral at a purchase price at least equal to the sum of the then accrued and outstanding Obligations, as determined by the Administrative Agent (the "Exercise Notice Purchase Price"). The Servicer may exercise
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such right by providing written notice (the "Exercise Notice") to the Borrower and the Administrative Agent (with a copy to the Collateral Agent) of its election to exercise such right which shall include the Exercise Notice Purchase Price and shall be delivered not later than 5:00
p.m. on the second Business Day following the date on which the Servicer receives notice from the Administrative Agent of the declaration or automatic occurrence of the Facility Maturity Date and acceleration of the Obligations; provided that if notice of an Event of Default and acceleration of the Obligations is delivered by the Administrative Agent after 2:00 p.m. New York City time, the Exercise Notice shall be delivered not later than 9:00 a.m. New York City time on the third Business Day immediately following the date of such notice. Once an Exercise Notice is given by the Servicer (subject to the immediately succeeding sentence), the Servicer (or such Affiliate or managed fund designated in the Exercise Notice) shall be obligated, irrevocably and unconditionally, to purchase the Collateral, at the Exercise Notice Purchase Price referenced in such Exercise Notice, for settlement within the normal settlement period for such Collateral. The Exercise Notice Purchase Price must be received by the Administrative Agent, or its designee, in immediately available funds no later than ten (10) Business Days following delivery of the Exercise Notice hereunder, or, if earlier, the date of settlement for such Collateral. The Administrative Agent shall not cause the liquidation of the Loan Assets to occur during the time that the Servicer is entitled to provide an Exercise Notice. In the event that the Exercise Notice is not timely provided and/or the Exercise Notice Purchase Price is not timely received, each pursuant to the conditions set forth in this Section 7.03, the Administrative Agent may forthwith liquidate the Loan Assets and may, in its sole discretion, appoint a Replacement Servicer. The Collateral Agent shall have no liability for (i) selling Collateral to the Servicer (or its designated Affiliate (other than the Borrower) or managed fund) or (ii) any delay, failure or loss of value in liquidating Collateral as a result of the requirements above.
ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnities by the Borrower.
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a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower or any of its Affiliates or shareholders); provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent that such damages, losses, claims, liabilities and related costs and expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence, bad faith, fraud or willful misconduct on the part of such Indemnified Party.
Section 8.02 Indemnities by Servicer.
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thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence, bad faith, fraud or willful misconduct on the part of such Indemnified Party claiming indemnification hereunder.
Section 8.03 Waiver of Certain Claims. To the extent permitted by Applicable Law, none of the Borrower or the Servicer shall assert, and each hereby waives, any claim against any Indemnified Party, 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 of the Transaction Documents.
Section 8.04 Legal Proceedings. In the event an Indemnified Party becomes involved in any action, claim, or legal, governmental or administrative proceeding (an "Action") for which it seeks indemnification hereunder, the Indemnified Party shall promptly notify the other party or parties against whom it seeks indemnification (the "Indemnifying Party") in writing of the nature and particulars of the Action; provided that its failure to do so shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure has a material adverse effect on the Indemnifying Party. Except in the case of the Collateral Agent, the Account Bank and the Collateral Custodian or their related Indemnified Parties, upon written notice to the Indemnified Party acknowledging in writing that the indemnification provided hereunder applies to the Indemnified Party in connection with the Action (subject to the exclusion in the first sentence of
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Section 8.01 and the first sentence of Section 8.02, as applicable), the Indemnifying Party may assume the defense of the Action at its expense with counsel reasonably acceptable to the Indemnified Party. Such Indemnified Party shall have the right to retain separate counsel in connection with the Action, and the Indemnifying Party shall not be liable for the legal fees and expenses of the Indemnified Party after the Indemnifying Party has done so; provided that if the Indemnified Party determines in good faith that there may be a conflict between the positions of the Indemnified Party and the Indemnifying Party in connection with the Action, or that the Indemnifying Party is not conducting the defense of the Action in a manner reasonably protective of the interests of the Indemnified Party, the reasonable and documented out-of-pocket outside legal fees and expenses of the Indemnified Party shall be paid by the Indemnifying Party; provided, further, that the Indemnifying Party shall not, in connection with any one Action or separate but substantially similar or related Actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees or expenses of more than one separate firm of attorneys (and any required local counsel) for such Indemnified Party, which firm (and local counsel, if any) shall be designated in writing to the Indemnifying Party by the Indemnified Party. If the Indemnifying Party elects to assume the defense of the Action, it shall have full control over the conduct of such defense; provided that the Indemnifying Party and its counsel shall, as reasonably requested by the Indemnified Party or its counsel, consult with and keep them informed with respect to the conduct of such defense. The Indemnifying Party shall not settle an Action without the prior written approval of the Indemnified Party unless such settlement provides for the full and unconditional release of the Indemnified Party from all liability in connection with the Action and such settlement (i) does not arise from or is not a part of any criminal action, (ii) does not contain a stipulation to, confession of judgment with respect to, or admission or acknowledgment of any liability or wrongdoing on the part of the Indemnified Party and (iii) does not provide for injunctive relief or other relief other than monetary damages payable by the Indemnifying Party. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with the defense of the Action.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01 The Administrative Agent.
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of the foregoing sentence, the use of the term "agent" in this Agreement with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
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with this Agreement and all actions required by such section in connection with such transfer shall have been taken.
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the time, continue to make its own decisions in taking or not taking action under this Agreement and the other Transaction Documents to which it is a party. Each Lender and each Secured Party hereby agrees that the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower, the Servicer, the Transferor or their respective Affiliates which may come into the possession of the Administrative Agent or any of its Affiliates.
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removal hereunder as Administrative Agent, the provisions of this Article IX shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
ARTICLE X COLLATERAL AGENT
Section 10.01 Designation of Collateral Agent.
U.S. Bank Trust Company, National Association, in its capacity as Collateral Agent hereunder,
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as their agent for the purposes of perfection of a security interest in the Collateral. U.S. Bank Trust Company, National Association, in its capacity as Collateral Agent hereunder, xxxxxx accepts such appointment and agrees to perform the duties set forth in Section 10.02(b).
Section 10.02 Duties of Collateral Agent.
2.04 or 2.05.
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permit access to the information in the Collateral Database by the Servicer, the Borrower and the Administrative Agent no later than the Closing Date. The Collateral Agent shall provide a daily report to the Servicer, the Borrower and the Administrative Agent, in an electronic format and in scope mutually acceptable to the Collateral Agent, the Servicer, the Borrower and the Administrative Agent, that summarizes the material information contained in the Collateral Database, including, without limitation, the Outstanding Balance of the Collateral and balances of the Controlled Accounts. The Collateral Agent shall update the Collateral Database promptly for Loan Assets and Permitted Investments acquired or sold or otherwise disposed of and for any amendments or changes to Loan Asset amounts or interest rates.
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Collateral Agent of its various duties hereunder shall be based upon, and in reliance upon, data, information and notice provided to it by the Servicer, the Administrative Agent, the Borrower, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Notwithstanding anything contained herein, the Collateral Agent shall not have any obligation with respect to any collateral comprising of real property. The Servicer and the Administrative Agent, as applicable, shall reasonably cooperate with the Collateral Agent in connection with the preparation by the Collateral Agent of the above mentioned reports and calculations. Nothing herein shall obligate the Collateral Agent to determine (i) if a Loan Asset meets the criteria specified herein or is an Eligible Loan Asset, or if the conditions (including the Eligibility Criteria) for the purchase of a Loan Asset have been complied with, (ii) the Borrowing Base, Net Asset Value or EBITDA, or whether a Borrowing Base Deficiency or Value Adjustment Event has occurred, (iii) the Concentration Limitations or the determination of any Excess Concentration Amount, (iv) the Unfunded Exposure Amount or Unfunded Exposure Equity Amount, (v) any Excluded Amounts, (vi) the type, classification, Adjusted Borrowing Value or Assigned Value of any Loan Asset. Further, nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor of the Loan Asset is in default or in compliance with the underlying instruments governing or securing such assets. The Collateral Agent, Collateral Custodian and Account Bank shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Collateral Agent, Collateral Custodian and Account Bank shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Advances, or disclosure of confidential information, to any Disqualified Institution.
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including to file financing and continuation statements in respect of the Collateral in accordance with Section 5.01(u).
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Agreement. For the avoidance of doubt, all of the Collateral Agent's rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Pledge Agreement and Control Agreement in such capacity.
Section 10.03 Merger or Consolidation. Any Person (a) into which the Collateral Agent may be merged or consolidated, (b) that may result from any merger or consolidation to which the Collateral Agent shall be a party, or (c) that may succeed to the properties and assets of the Collateral Agent substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Collateral Agent hereunder, shall be the successor to the Collateral Agent under this Agreement without further act of any of the parties to this Agreement.
Section 10.04 Collateral Agent Compensation. As compensation for its Collateral Agent activities hereunder, the Collateral Agent shall be entitled to the Collateral Agent Fees and Collateral Agent Expenses from the Borrower as set forth in the Collateral Agent and Collateral Custodian Fee Letter, payable to the extent of funds available therefor pursuant to the provisions of Section 2.04. The Collateral Agent's entitlement to receive the Collateral Agent Fees shall cease on the earlier to occur of: (a) its removal as Collateral Agent pursuant to Section 10.05 or
(b) the termination of this Agreement.
Section 10.05 Collateral Agent Removal. The Collateral Agent may be removed, with or without cause, by the Administrative Agent by 30 calendar days' notice given in writing to the Collateral Agent (the "Collateral Agent Termination Notice") and, so long as no Event of Default has occurred and is continuing, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed); provided that, notwithstanding its receipt of a Collateral Agent Termination Notice, the Collateral Agent shall continue to act in such capacity until a successor Collateral Agent has been appointed and has agreed to act as Collateral Agent hereunder; provided, further, that the Collateral Agent shall continue to receive compensation of its fees and expenses in accordance with Section 10.04 above while so serving as the Collateral Agent prior to a successor Collateral Agent being appointed.
Section 10.06 Limitation on Liability.
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through agents or attorneys and shall not be responsible for the negligence or misconduct of any agent or attorney in fact that it selects with reasonable care.
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Maturity Date, request instructions from the Servicer and may, during the continuance of an Event of Default or after the Facility Maturity Date, request instructions from the Administrative Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from the Servicer or the Administrative Agent, as applicable. The Collateral Agent shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Administrative Agent or the Borrower (or the Servicer on behalf of the Borrower), as the case may be. In no event shall the Collateral Agent be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
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the designation of such a rate have been satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes, Canadian Benchmark Conforming Changes or other changes are necessary or advisable, if any, in connection with any of the foregoing. None of the Collateral Agent, the Collateral Custodian or the Account Bank shall be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Agreement as a result of the unavailability of Term SOFR (or other applicable Benchmark or replacement Benchmark or Canadian Benchmark) and absence of a designated replacement Benchmark, including as a result of any inability, delay, error or inaccuracy on the part of any other transaction party, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and reasonably required for the performance of such duties.
Section 10.07 Collateral Agent Resignation. The Collateral Agent may resign at any time by giving not less than ninety (90) days' written notice thereof to the Administrative Agent and with the consent of the Administrative Agent, which consent shall not be unreasonably withheld. Upon receiving such notice of resignation, the Administrative Agent (with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) so long as no Event of Default has occurred and is continuing) shall promptly appoint a successor collateral agent or collateral agents by written instrument, in duplicate, executed by the Administrative Agent, one copy of which shall be delivered to the Collateral Agent so resigning and one copy to the successor collateral agent or collateral agents, together with a copy to the Borrower, Servicer and Collateral Custodian. If no successor collateral agent shall have been appointed and an instrument of acceptance by a successor Collateral Agent shall not have been delivered to the Collateral Agent within forty-five (45) days after the giving of such notice of resignation, the resigning Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent. Notwithstanding anything herein to the contrary, the Collateral Agent may not resign prior to a successor Xxxxxxxxxx Agent being appointed.
Section 10.8. The Account Bank. In executing and delivering this Agreement, the Account Bank shall be entitled to the protections, benefits and immunities set forth in the Control Agreement, mutatis mutandis.
ARTICLE XI
COLLATERAL CUSTODIAN
Section 11.01 Designation of Collateral Custodian.
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Collateral Custodian pursuant to the terms of this Agreement, until its resignation or removal as Collateral Custodian pursuant to the terms hereof.
Section 11.02 Duties of Collateral Custodian.
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Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents on their face based on the information provided on the Loan Asset Checklist and the Collateral Custodian shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Custodian shall determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form. In performing its duties hereunder, the Collateral Custodian shall be entitled to the protections, benefits and immunities provided to the Collateral Agent, mutatis mutandis.
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Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Section 11.03 Merger or Consolidation. Any Person (a) into which the Collateral Custodian may be merged or consolidated, (b) that may result from any merger or consolidation to which the Collateral Custodian shall be a party, or (c) that may succeed to the properties and assets of the Collateral Custodian substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Collateral Custodian hereunder, shall be the successor to the Collateral Custodian under this Agreement without further act of any of the parties to this Agreement.
Section 11.04 Collateral Custodian Compensation. As compensation for its Collateral Custodian activities hereunder, the Collateral Custodian shall be entitled to the Collateral Custodian Fees from the Borrower as set forth in the Collateral Agent and Collateral Custodian Fee Letter, payable pursuant to the extent of funds available therefor pursuant to the provisions of Section 2.04. The Collateral Custodian's entitlement to receive the Collateral Custodian Fees shall cease on the earlier to occur of: (a) its removal as Collateral Custodian pursuant to Section 11.05, (b) its resignation as Collateral Custodian pursuant to Section 11.07 of this Agreement or (c) the termination of this Agreement.
Section 11.05 Collateral Custodian Removal. The Collateral Custodian may be removed, with or without cause, by the Administrative Agent by notice given in writing to the Collateral Custodian (the "Collateral Custodian Termination Notice") and, so long as no Event of Default has occurred and is continuing, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed); provided that, notwithstanding its receipt of a Collateral Custodian Termination Notice, the Collateral Custodian shall continue to act in such capacity until a successor Collateral Custodian has been appointed and has agreed to act as Collateral Custodian hereunder.
Section 11.06 Limitation on Liability.
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Section 11.07 Collateral Custodian Resignation. The Collateral Custodian may resign and be discharged from its duties or obligations hereunder, not earlier than ninety (90) days after delivery to the Administrative Agent of written notice of such resignation specifying a date when such resignation shall take effect. Upon the effective date of such resignation, or if the Administrative Agent gives Collateral Custodian written notice of an earlier termination hereof, Collateral Custodian shall (i) be reimbursed for any costs and expenses Collateral Custodian shall incur in connection with the termination of its duties under this Agreement and (ii) deliver all of the Required Loan Documents in the possession of Collateral Custodian to the Administrative Agent or to such Person as the Administrative Agent may designate to Collateral Custodian in writing upon the receipt of a request in the form of Exhibit J. Notwithstanding anything herein to the contrary, the Collateral Custodian may not resign prior to a successor Xxxxxxxxxx Custodian being appointed.
Section 11.08 Release of Documents.
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limitations of this paragraph shall not apply to the release of Required Loan Documents to the Servicer pursuant to the immediately succeeding subsection.
Section 11.09 Return of Required Loan Documents. The Borrower may, with the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld), require that the Collateral Custodian return each Required Loan Document (a) delivered to the Collateral Custodian in error or (b) released from the Lien of the Collateral Agent hereunder pursuant to Section 2.14, in each case by submitting to the Collateral Custodian and the Administrative Agent a written request in the form of Exhibit J hereto (signed by both the Borrower and the Administrative Agent) specifying the Collateral to be so returned and reciting that the conditions to such release have been met (and specifying the Section or Sections of this Agreement being relied upon for such release). The Collateral Custodian shall upon its receipt of each such request for return executed by the Borrower and the Administrative Agent promptly, but in any event within five (5) Business Days, return the Required Loan Documents so requested to the Borrower.
Section 11.10 Access to Certain Documentation and Information Regarding the Collateral. The Collateral Custodian shall provide to the Administrative Agent and each Lender access to the Required Loan Documents and all other documentation regarding the Collateral including in such cases where the Administrative Agent and each Lender is required in connection with the enforcement of the rights or interests of the Secured Parties, or by applicable statutes or regulations, to review such documentation, such access being afforded without charge but only (a) upon two (2) Business Days prior written request, (b) during normal business hours and (c) subject to the Servicer's and the Collateral Custodian's normal security and confidentiality procedures. Without limiting the foregoing provisions of this Section 11.10, from time to time on request of the Administrative Agent, the Collateral Custodian shall permit certified public accountants or other auditors acceptable to the Administrative Agent to conduct, at the expense of the Servicer (on behalf of the Borrower), a review of the Required Loan Documents and all other documentation regarding the Collateral; provided that, prior to the occurrence of an Event of Default, such review shall be conducted no more than one time in any calendar year. So long as no Event of Default or Servicer Default has occurred and is continuing, no more than one such visit or inspection per year shall be at the expense of the Borrower (which such visit, inspection or audit shall, if reasonably practicable, be consolidated with any visit, inspection or audit under Section 5.01(u), Section 6.10, Section 6.11).
Section 11.11 Bailment. The Collateral Custodian agrees that, with respect to any Required Loan Documents at any time or times in its possession or held in its name, the Collateral Custodian shall be the agent and bailee of the Collateral Agent, for the benefit of the Secured Parties, for purposes of perfecting (to the extent not otherwise perfected) the Collateral
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Agent's security interest in the Collateral and for the purpose of ensuring that such security interest is entitled to first priority status under the UCC (subject to Permitted Liens).
ARTICLE XII MISCELLANEOUS
Section 12.01 Amendments and Waivers.
Section 12.02 Notices, Etc. Except as otherwise provided herein, all notices and other communications hereunder to any party shall be in writing and sent by certified or registered mail, return receipt requested, by overnight delivery service, with all charges paid, by electronic mail ("email") or by hand delivery, to such party's address set forth below:
BORROWER: First Eagle Private Credit Fund SPV, LLC c/o First Eagle Alternative Credit, LLC 000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Boston, MA 02116
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Attention: Xxxxxxx Xxxxxx-Xxxxxxx, General Counsel, Senior Managing Director
Email: Xxxxxxx.Xxxxxxx@xxxxxxxxxx.xxx Phone: 000.000.0000
SERVICER: FEPC Fund Servicer LLC
c/o First Eagle Alternative Credit, LLC 000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Boston, MA 02116
Attention: Xxxxxxx Xxxxxx-Xxxxxxx, General Counsel, Senior Managing Director
Email: Xxxxxxx.Xxxxxxx@xxxxxxxxxx.xxx Phone: 000.000.0000
TRANSFEROR: First Eagle Private Credit Fund
c/o First Eagle Alternative Credit, LLC 000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Boston, MA 02116
Attention: Xxxxxxx Xxxxxx-Xxxxxxx, General Counsel, Senior Managing Director
Email: Xxxxxxx.Xxxxxxx@xxxxxxxxxx.xxx Phone: 000.000.0000
ADMINISTRATIVE AGENT: Xxxxxx Xxxxxxx Senior Funding, Inc.
0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: CLO Team
Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
COLLATERAL AGENT: U.S. Bank Trust Company, National Association 000 X. XxXxxxx Xxxxxx, 0xx Xxxxx
Chicago, IL 60603
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC
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Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
ACCOUNT BANK: U.S. Bank National Association 000 X. XxXxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC
Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
COLLATERAL CUSTODIAN: U.S. Bank National Association
0000 Xxxx Xxx
Florence, SC 29501
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC
Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
LENDER: Xxxxxx Xxxxxxx Bank, N.A.
000 Xxxxx Xxxx Xxxxxx
Salt Lake City, Utah 84111-2215 Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With copies to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxxx Xxxxxxx Bank, N.A.
0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000
Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
or at such other address as such party may hereafter specify in a notice given in the manner required under this Section 12.02. All such notices and correspondence shall be deemed given
(a) if sent by certified or registered mail, three (3) Business Days after being postmarked, (b) if
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sent by overnight delivery service or by hand delivery, when received at the above stated addresses or when delivery is refused and (c) if sent by email, when received.
Each of the Collateral Agent and the Collateral Custodian shall be entitled to accept and act upon instructions or directions pursuant to this Agreement and other Transaction Documents sent by unsecured email, facsimile transmission or other similar unsecured electronic methods; provided, however, that each party providing such instructions or directions shall provide to the Collateral Agent or Collateral Custodian an incumbency certificate listing persons designated to provide such instructions or directions, which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such party elects to give the Collateral Agent or Collateral Custodian email or facsimile instructions (or instructions by a similar electronic method) and such Person in its discretion elects to act upon such instructions, such Person's reasonable understanding of such instructions shall be deemed to be controlling. Neither the Collateral Agent nor the Collateral Custodian shall be liable for any losses, costs or expenses arising directly or indirectly from its reliance in good faith upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Each party hereto agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Collateral Agent or Collateral Custodian, including without limitation the risk of the Collateral Agent or Collateral Custodian on unauthorized instructions, and the risk of interception and misuse by third parties. Any party providing such instructions acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
Section 12.03 No Waiver; Remedies. No failure on the part of the Administrative Agent, the Collateral Agent or any Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 12.04 Binding Effect; Assignability; Multiple Lenders.
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consent of the Borrower shall be required for (x) any grant of a security interest to any Person or to a sale of a participation interest to a Person that is not a Disqualified Institution, (y) an assignment to a Lender or an Affiliate of a Lender or (z) an assignment that is required by Applicable Law) and (2) any sale of a participation interest to any Person that is a Disqualified Institution. Any such assignee shall execute and deliver to the Servicer, the Borrower and the Administrative Agent a fully-executed assignment and acceptance agreement in the form of Exhibit K hereto (an "Assignment and Acceptance"). The parties to any such assignment, grant or sale of a participation interest shall execute and deliver to the related Lender for its acceptance and recording in its books and records, such agreement or document as may be satisfactory to such parties and the applicable Lender. None of the Borrower, the Transferor or the Servicer may assign, or permit any Lien (except Permitted Liens) to exist upon, any of its rights or obligations hereunder or under any Transaction Document or any interest herein or in any Transaction Document without the prior written consent of each Lender and the Administrative Agent other than (x) any assignment by the Servicer to a Qualified FE Affiliate or (y) any other assignment expressly permitted hereunder.
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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.
Section 12.05 Term of This Agreement. This Agreement, including, the Borrower's representations and covenants set forth in Articles IV and V and the Servicer's representations, covenants and duties set forth in Articles IV, V and VI, shall remain in full force and effect until the Collection Date; provided that the rights and remedies with respect to any breach of any representation and warranty made or deemed made by the Borrower or the Servicer pursuant to Articles III and IV and the indemnification and payment provisions of Article VIII, IX and Article XII and the provisions of Section 2.10, Section 2.11, Section 12.07 and Section 12.09 shall be continuing and shall survive any termination of this Agreement.
Section 12.06 GOVERNING LAW; JURY WAIVER.
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AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
Section 12.07 Costs, Expenses and Taxes.
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Collateral Custodian incurred in connection with (x) the preparation, execution, delivery, administration (including periodic auditing), syndication, renewal, amendment or modification of, any waiver or consent issued in connection with, this Agreement, the Transaction Documents and the other documents to be delivered hereunder or in connection herewith, including, the reasonable and documented fees and out-of-pocket expenses of outside counsel for the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank and the Collateral Custodian with respect thereto and with respect to advising the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank and the Collateral Custodian as to their respective rights and remedies under this Agreement and the other documents to be delivered hereunder or in connection herewith (it being understood that this Section 12.07(a) shall, in the case of the Administrative Agent and the Lenders, only apply with respect to one counsel to the Administrative Agent and the Lenders, collectively), and (y) the enforcement or potential enforcement of this Agreement or any Transaction Document by such Person and the other documents to be delivered hereunder or in connection herewith.
Section 12.08 Further Assurances. The Borrower shall promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, financing statements, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) to the fullest extent permitted by applicable law, subject any of the Borrower's properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the security documents, (ii) perfect and maintain the validity, effectiveness and priority of any of the security documents and any of the Liens intended to be created thereunder and (iii) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Transaction Document or under any other instrument executed in connection with any Transaction Document to which the Borrower is or is to be a party.
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Section 12.09 Recourse Against Certain Parties.
Agreement.
Section 12.10 Execution in Counterparts; Severability; Integration. This Agreement may be executed in any number of counterparts and by different parties hereto in separate 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. Delivery of an executed counterpart of a signature page to this Agreement by email in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Agreement. In the event that any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. This Agreement and any agreements or letters (including fee letters) executed in connection herewith contains the final and complete integration of all prior and contemporaneous expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all prior and contemporaneous oral or written understandings other than any fee letter delivered by the Servicer to the Administrative Agent and the Lenders. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. Moreover, the parties to this Agreement waive reliance on any representation made by any other party, whether orally or in writing, prior to the execution of this Agreement.
Section 12.11 Characterization of Conveyances Pursuant to the Purchase and Sale Agreement.
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Loan Assets. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Eligible Loan Assets by the Transferor to the Borrower to secure a debt or other obligation of the Transferor. However, in the event that, notwithstanding the intent of the parties, the Eligible Loan Assets are held to continue to be property of the Transferor, then the parties hereto agree that: (i) the Purchase and Sale Agreement shall also be deemed to be a security agreement under Applicable Law; (ii) as set forth in the Purchase and Sale Agreement, the transfer of the Eligible Loan Assets provided for in the Purchase and Sale Agreement shall be deemed to be a grant by the Transferor to the Borrower of a first priority security interest (subject only to Permitted Liens) in all of the Transferor's right, title and interest in and to the Eligible Loan Assets and all amounts payable to the holders of the Eligible Loan Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including, all amounts from time to time held or invested in the Controlled Accounts, whether in the form of cash, instruments, securities or other property; (iii) the possession by the Borrower (or the Collateral Custodian on its behalf) of Loan Assets and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be, subject to clause (iv) below, for purposes of perfecting the security interest pursuant to the UCC; and (iv) acknowledgements from Persons holding such property shall be deemed acknowledgements from custodians, bailees or agents (as applicable) of the Borrower for the purpose of perfecting such security interest under Applicable Law. The parties further agree that any assignment of the interest of the Borrower pursuant to any provision hereof shall also be deemed to be an assignment of any security interest created pursuant to the terms of the Purchase and Sale Agreement. The Borrower shall, to the extent consistent with this Agreement and the other Transaction Documents, take such actions as may be necessary to ensure that, if the Purchase and Sale Agreement was deemed to create a security interest in the Eligible Loan Assets transferred thereunder, such security interest would be deemed to be a perfected security interest of first priority (subject only to Permitted Liens) under Applicable Law and will be maintained as such throughout the term of this Agreement.
Section 12.12 Confidentiality.
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judicial, administrative or regulatory authority or proceedings (whether or not having the force or effect of law).
Section 12.13 Waiver of Set Off. Each of the parties hereto hereby waives any right of setoff it may have or to which it may be entitled under this Agreement from time to time against the Administrative Agent, the Lenders or their respective assets.
Section 12.14 Headings and Exhibits. The headings herein are for purposes of references only and shall not otherwise affect the meaning or interpretation of any provision hereof. The schedules and exhibits attached hereto and referred to herein shall constitute a part of this Agreement and are incorporated into this Agreement for all purposes.
Section 12.15 Ratable Payments. If any Lender, whether by setoff or otherwise, shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) on account of Advances or the I/O Notional Loan, as applicable, owing to it (other than pursuant to Breakage Fees, Section 2.10 or Section 2.11) in excess of its ratable share of payments on account of the Advances or the I/O Notional Loan, as applicable, obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Advances or the I/O Notional Loan, as applicable, owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided that, if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Xxxxxx's ratable share (according to the proportion of (a) the amount of such Xxxxxx's required repayment to (b) the total amount so recovered from the purchasing Lender) of any interest or
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other amount paid or payable by the purchasing Lender in respect of the total amount so recovered.
Section 12.16 Failure of Borrower or Servicer to Perform Certain Obligations. If the Borrower or the Servicer, as applicable, fails to perform any of its agreements or obligations under Section 5.01(u), Section 5.02(p) or Section 5.03(e), the Administrative Agent may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the reasonable and documented expenses of the Administrative Agent incurred in connection therewith shall be payable by the Borrower upon the Administrative Agent's demand therefor.
Section 12.17 Power of Attorney. The Borrower irrevocably authorizes the Administrative Agent and appoints the Administrative Agent as its attorney-in-fact to act on behalf of the Borrower (a) to file financing statements necessary or desirable in the Administrative Agent's sole discretion to perfect and to maintain the perfection and priority of the interest of the Secured Parties in the Collateral and (b) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Collateral as a financing statement in such offices as the Administrative Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Secured Parties in the Collateral. This appointment is coupled with an interest and is irrevocable.
Section 12.18 Delivery of Termination Statements, Releases, etc. Upon payment in full of all of the Obligations (other than unmatured contingent indemnification obligations) and the termination of this Agreement, the Collateral Agent shall (i) deliver to the Borrower termination statements, reconveyances, releases and other documents the Borrower deems reasonably necessary or appropriate to evidence the termination of the Grant and other Liens securing the Obligations, all at the expense of the Borrower, (ii) deliver the Collateral in its possession to or at the direction of the Borrower or the Servicer (on behalf of the Borrower) and (iii) otherwise take such actions as are reasonably requested by the Borrower and necessary and appropriate to release the Lien of the Collateral Agent for the benefit of the Secured Parties on the Collateral (including, without limitation, delivering a termination notice in respect of the Control Agreement).
Section 12.19 Non-Petition.
204
(ii) all powers and rights incidental thereto. This appointment is coupled with an interest and is irrevocable.
Section 12.20 Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Transaction Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Transaction Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
205
Section 12.21 Return of Certain Payments.
206
any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) the receipt by any Recipient Lender of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower (except to the extent that the funds used to make such Payment were received from, or on behalf of (including through the exercise of remedies under any Transaction Document) the Borrower or disbursed from the Collection Account as repayment of such Obligations); provided that this Section 12.21 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Payment not been made by the Administrative Agent.
[Signature pages to follow.]
207
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BORROWER:
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC
By: First Eagle Private Credit Fund, its sole member
By:
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
[Signature Page to Loan and Servicing Agreement]
SERVICER:
FEPC FUND SERVICER LLC
By: First Eagle Private Credit Fund, its sole member
By:
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
[Signature Page to Loan and Servicing Agreement]
TRANSFEROR:
FIRST EAGLE PRIVATE CREDIT FUND
By:
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
[Signature Page to Loan and Servicing Agreement]
ADMINISTRATIVE AGENT:
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By:
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
[Signature Page to Loan and Servicing Agreement]
LENDER:
XXXXXX XXXXXXX BANK, N.A.
By:
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
[Signature Page to Loan and Servicing Agreement]
COLLATERAL AGENT:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
By:
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
[Signature Page to Loan and Servicing Agreement]
ACCOUNT BANK:
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
[Signature Page to Loan and Servicing Agreement]
COLLATERAL CUSTODIAN:
U.S. BANK NATIONAL ASSOCIATION
By:
Name: Title:
[Signature Page to Loan and Servicing Agreement]
SCHEDULE I
CONDITIONS PRECEDENT DOCUMENTS
As required by Section 3.01 of this Agreement, each of the following items must be delivered to the Administrative Agent and the Lenders prior to the effectiveness of the Agreement:
Sch. I-1
opinion of the Administrative Agent, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the Collateral Agent's, on behalf of the Secured Parties, interests in the membership interests of the Borrower pursuant to the terms of the Pledge Agreement;
Sch. I-2
SCHEDULE II
ELIGIBILITY CRITERIA
The representations and warranties set forth in this Schedule II are made by the Borrower and the Servicer under this Agreement and, solely with respect to Loan Assets that are acquired by the Borrower from the Transferor pursuant to the Purchase and Sale Agreement, the Transferor under the Purchase and Sale Agreement, with respect to all Loan Assets which are designated as being Eligible Loan Assets on any Borrowing Base Certificate or are otherwise represented to the Administrative Agent or the Lenders as being Eligible Loan Assets, or are included as Eligible Loan Assets in any calculation set forth in this Agreement to which this Schedule II is attached; provided that, if such Loan Asset does not satisfy the representations and warranties below, the Administrative Agent may expressly consent in its sole discretion to the inclusion of such Loan Asset as an Eligible Loan Asset; provided, further, that the Administrative Agent will only be considered to have consented to such inclusion if the Borrower and the Servicer have expressly acknowledged that one or more of the representations and warranties below are not true with respect to such Loan Asset.
(i) the United States or any state, commonwealth, territory or other jurisdiction (including the District of Columbia) thereof, or (ii) Australia, Canada, United Kingdom or any member state of the European Union (any such country, an "Eligible Country").
Sch. II-1
Sch. II-1
Instruments unenforceable in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto, and the Underlying Instruments with respect to the Loan Asset provide for an affirmative waiver by the related Obligor of all rights of rescission, set-off and counterclaim against the lenders thereunder.
in full.
Borrower to any Person other than the Collateral Agent for the benefit of the Secured Parties.
Sch. II-1
and own such Loan Assets and enter into Underlying Instruments pursuant to which such Loan Asset was created, in the jurisdiction where the Obligor is located (to the extent required by Applicable Law).
(7) years.
Sch. II-1
Sch. II-1
Sch. II-1
SCHEDULE III
AGREED-UPON PROCEDURES FOR INDEPENDENT PUBLIC ACCOUNTANTS
Three (3) (or, for the year ending December 31, 2023, one (1)) randomly selected Servicing Reports
Sch. III-1
SCHEDULE IV
LOAN ASSET SCHEDULE
For each Loan Asset, the Borrower shall provide, as applicable, the following information:
Sch. IV-1
Sch. IV-1
(ll) Calculation of the Fully Funded LTV as of the applicable Cut-Off Date, the most recent period and the prior period for such Loan Asset
(mm) The Spot Rate for such Loan Asset (if applicable)
(nn) For any Asset Based Loan, collateral type (intellectual property, equipment, real property, other)
(oo) For any Asset Based Loan, required appraisal frequency (6 months, 12 months) (pp) For any Asset Based Loan, Approved Valuation Agent
(qq) For any Asset Based Loan, the appraisal metric (rr) For any Asset Based Loan, date of last appraisal
(ss) For any Asset Based Loan, location of Related Collateral
(tt) For any Recurring Revenue Loan, Debt-to-Recurring-Revenue Ratio (uu) For any Recurring Revenue Loan, Recurring Revenue
Sch. IV-1
SCHEDULE V
DIVERSITY SCORE CALCULATION
The Diversity Score of any Loan Asset as of any date of determination is calculated as follows:
1
Aggregate Industry Equivalent Unit Score |
Industry Diversity Score |
Aggregate Industry Equivalent Unit Score |
Industry Diversity Score |
Aggregate Industry Equivalent Unit Score |
Industry Diversity Score |
Aggregate Industry Equivalent Unit Score |
Industry Diversity Score |
0.0000 |
0.0000 |
5.0500 |
2.7000 |
10.1500 |
4.0200 |
15.2500 |
4.5300 |
0.0500 |
0.1000 |
5.1500 |
2.7333 |
10.2500 |
4.0300 |
15.3500 |
4.5400 |
0.1500 |
0.2000 |
5.2500 |
2.7667 |
10.3500 |
4.0400 |
15.4500 |
4.5500 |
0.2500 |
0.3000 |
5.3500 |
2.8000 |
10.4500 |
4.0500 |
15.5500 |
4.5600 |
0.3500 |
0.4000 |
5.4500 |
2.8333 |
10.5500 |
4.0600 |
15.6500 |
4.5700 |
0.4500 |
0.5000 |
5.5500 |
2.8667 |
10.6500 |
4.0700 |
15.7500 |
4.5800 |
0.5500 |
0.6000 |
5.6500 |
2.9000 |
10.7500 |
4.0800 |
15.8500 |
4.5900 |
0.6500 |
0.7000 |
5.7500 |
2.9333 |
10.8500 |
4.0900 |
15.9500 |
4.6000 |
0.7500 |
0.8000 |
5.8500 |
2.9667 |
10.9500 |
4.1000 |
16.0500 |
4.6100 |
0.8500 |
0.9000 |
5.9500 |
3.0000 |
11.0500 |
4.1100 |
16.1500 |
4.6200 |
0.9500 |
1.0000 |
6.0500 |
3.0250 |
11.1500 |
4.1200 |
16.2500 |
4.6300 |
1.0500 |
1.0500 |
6.1500 |
3.0500 |
11.2500 |
4.1300 |
16.3500 |
4.6400 |
1.1500 |
1.1000 |
6.2500 |
3.0750 |
11.3500 |
4.1400 |
16.4500 |
4.6500 |
1.2500 |
1.1500 |
6.3500 |
3.1000 |
11.4500 |
4.1500 |
16.5500 |
4.6600 |
1.3500 |
1.2000 |
6.4500 |
3.1250 |
11.5500 |
4.1600 |
16.6500 |
4.6700 |
1.4500 |
1.2500 |
6.5500 |
3.1500 |
11.6500 |
4.1700 |
16.7500 |
4.6800 |
1.5500 |
1.3000 |
6.6500 |
3.1750 |
11.7500 |
4.1800 |
16.8500 |
4.6900 |
1.6500 |
1.3500 |
6.7500 |
3.2000 |
11.8500 |
4.1900 |
16.9500 |
4.7000 |
1.7500 |
1.4000 |
6.8500 |
3.2250 |
11.9500 |
4.2000 |
17.0500 |
4.7100 |
1.8500 |
1.4500 |
6.9500 |
3.2500 |
12.0500 |
4.2100 |
17.1500 |
4.7200 |
1.9500 |
1.5000 |
7.0500 |
3.2750 |
12.1500 |
4.2200 |
17.2500 |
4.7300 |
2.0500 |
1.5500 |
7.1500 |
3.3000 |
12.2500 |
4.2300 |
17.3500 |
4.7400 |
2.1500 |
1.6000 |
7.2500 |
3.3250 |
12.3500 |
4.2400 |
17.4500 |
4.7500 |
2.2500 |
1.6500 |
7.3500 |
3.3500 |
12.4500 |
4.2500 |
17.5500 |
4.7600 |
2.3500 |
1.7000 |
7.4500 |
3.3750 |
12.5500 |
4.2600 |
17.6500 |
4.7700 |
2
2.4500 |
1.7500 |
7.5500 |
3.4000 |
12.6500 |
4.2700 |
17.7500 |
4.7800 |
2.5500 |
1.8000 |
7.6500 |
3.4250 |
12.7500 |
4.2800 |
17.8500 |
4.7900 |
2.6500 |
1.8500 |
7.7500 |
3.4500 |
12.8500 |
4.2900 |
17.9500 |
4.8000 |
2.7500 |
1.9000 |
7.8500 |
3.4750 |
12.9500 |
4.3000 |
18.0500 |
4.8100 |
2.8500 |
1.9500 |
7.9500 |
3.5000 |
13.0500 |
4.3100 |
18.1500 |
4.8200 |
2.9500 |
2.0000 |
8.0500 |
3.5250 |
13.1500 |
4.3200 |
18.2500 |
4.8300 |
3.0500 |
2.0333 |
8.1500 |
3.5500 |
13.2500 |
4.3300 |
18.3500 |
4.8400 |
3.1500 |
2.0667 |
8.2500 |
3.5750 |
13.3500 |
4.3400 |
18.4500 |
4.8500 |
3.2500 |
2.1000 |
8.3500 |
3.6000 |
13.4500 |
4.3500 |
18.5500 |
4.8600 |
3.3500 |
2.1333 |
8.4500 |
3.6250 |
13.5500 |
4.3600 |
18.6500 |
4.8700 |
3.4500 |
2.1667 |
8.5500 |
3.6500 |
13.6500 |
4.3700 |
18.7500 |
4.8800 |
3.5500 |
2.2000 |
8.6500 |
3.6750 |
13.7500 |
4.3800 |
18.8500 |
4.8900 |
3.6500 |
2.2333 |
8.7500 |
3.7000 |
13.8500 |
4.3900 |
18.9500 |
4.9000 |
3.7500 |
2.2667 |
8.8500 |
3.7250 |
13.9500 |
4.4000 |
19.0500 |
4.9100 |
3.8500 |
2.3000 |
8.9500 |
3.7500 |
14.0500 |
4.4100 |
19.1500 |
4.9200 |
3.9500 |
2.3333 |
9.0500 |
3.7750 |
14.1500 |
4.4200 |
19.2500 |
4.9300 |
4.0500 |
2.3667 |
9.1500 |
3.8000 |
14.2500 |
4.4300 |
19.3500 |
4.9400 |
4.1500 |
2.4000 |
9.2500 |
3.8250 |
14.3500 |
4.4400 |
19.4500 |
4.9500 |
4.2500 |
2.4333 |
9.3500 |
3.8500 |
14.4500 |
4.4500 |
19.5500 |
4.9600 |
4.3500 |
2.4667 |
9.4500 |
3.8750 |
14.5500 |
4.4600 |
19.6500 |
4.9700 |
4.4500 |
2.5000 |
9.5500 |
3.9000 |
14.6500 |
4.4700 |
19.7500 |
4.9800 |
4.5500 |
2.5333 |
9.6500 |
3.9250 |
14.7500 |
4.4800 |
19.8500 |
4.9900 |
4.6500 |
2.5667 |
9.7500 |
3.9500 |
14.8500 |
4.4900 |
19.9500 |
5.0000 |
4.7500 |
2.6000 |
9.8500 |
3.9750 |
14.9500 |
4.5000 |
|
|
4.8500 |
2.6333 |
9.9500 |
4.0000 |
15.0500 |
4.5100 |
|
|
4.9500 |
2.6667 |
10.0500 |
4.0100 |
15.1500 |
4.5200 |
|
|
For purposes of calculating the Diversity Score, Affiliates of an Obligor in the same Industry Classification are deemed to be a single Obligor, except as otherwise agreed to by the Administrative Agent.
3
SCHEDULE VI
INDUSTRY CLASSIFICATION
Global Industry Classification Standard Industries
1
Asset Type Code
101010
101020
151010
151020
151030
151040
151050
201010
201020
201030
201040
201050
201060
201070
202010
202020
203010
203020
Asset Type Description Energy Equipment & Services Oil, Gas & Consumable Fuels Chemicals
Construction Materials Containers & Packaging Metals & Mining
Paper & Forest Products Aerospace & Defense Building Products Construction & Engineering Electrical Equipment Industrial Conglomerates Machinery
Trading Companies & Distributors Commercial Services & Supplies Professional Services
Air Freight & Logistics Passenger Airlines
2
203030 Marine Transportation
3
203040
203050
251010
Ground Transportation Transportation Infrastructure Automobile Components
4
251020 Automobiles
252010 Household Durables
252020 Leisure Products
252030 Textiles, Apparel & Luxury Goods
253010 Hotels, Restaurants & Leisure
5
253020
255010
255030
Diversified Consumer Services Distributors
Broadline Retail
6
255040 Specialty Retail
301010 Consumer Staples Distribution & Retail
302010 Beverages
302020 Food Products
302030 Tobacco
7
303010
303020
Household Products Personal Care Products
8
351010 |
Health Care Equipment & Supplies |
351020 |
Health Care Providers & Services |
351030 |
Health Care Technology |
352010 |
Biotechnology |
352020 |
Pharmaceuticals |
352030 |
Life Sciences Tools & Services |
401010 |
Banks |
402010 |
Financial Services |
402020 |
Consumer Finance |
402030 |
Capital Markets |
402040 |
Mortgage Real Estate Investment Trusts (REITs) |
403010 |
Insurance |
451020 |
IT Services |
451030 |
Software |
452010 |
Communications Equipment |
452020 |
Technology Hardware, Storage & Peripherals |
452030 |
Electronic Equipment, Instruments & Components |
453010 |
Semiconductors & Semiconductor Equipment |
501010 |
Diversified Telecommunication Services |
501020 |
Wireless Telecommunication Services |
502010 |
Media |
502020 |
Entertainment |
502030 |
Interactive Media & Services |
551010 |
Electric Utilities |
551020 |
Gas Utilities |
551030 |
Multi-Utilities |
551040 |
Water Utilities |
551050 |
Independent Power and Renewable Electricity Producers |
601010 |
Diversified REITs |
601025 |
Industrial REITs |
601030 |
Hotel & Resort REITs |
601040 |
Office REITs |
601050 |
Health Care REITs |
601060 |
Residential REITs |
601070 |
Retail REITs |
601080 |
Specialized REITs |
602010 |
Real Estate Management & Development |
9
SCHEDULE VII
APPROVED VALUATION AGENTS
ANNEX A
Lender
Commitment
I/O Notional Loan Amount
Xxxxxx Xxxxxxx Bank, N.A. $350,000,000 $350,000,000
EXHIBIT A
FORM OF APPROVAL NOTICE
[Date]
(Xxxxxx Xxxxxxx Senior Funding, Inc.)
VIA ELECTRONIC MAIL
First Eagle Private Credit Fund SPV, LLC
Attention: Xxxxxxx Xxxxxx-Xxxxxxx, General Counsel, Senior Managing Director Email: Xxxxxxx.Xxxxxxx@xxxxxxxxxx.xxx
Re: Loan and Servicing Agreement, dated as of September 22, 2023 Ladies and Gentlemen:
This Approval Notice is delivered to you pursuant to that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
LOAN ASSET
APPROVAL NOTICE
DATE
ELIGIBLE LOAN ASSET INFORMATION See Attached Schedule I Approved Exceptions to Eligibility Criteria for Loan Asset See Attached Schedule II [Certain Value Adjustment Events] See Attached Schedule III
XXXXXX XXXXXXX APPROVAL See Attached Schedule I
SCHEDULE I TO
LOAN ASSET APPROVAL NOTICE
ELIGIBLE LOAN ASSET INFORMATION
Exhibit A-2
SCHEDULE II TO
LOAN ASSET APPROVAL NOTICE
APPROVED EXCEPTIONS TO ELIGIBILITY CRITERIA FOR LOAN ASSET
[SCHEDULE III TO
LOAN ASSET APPROVAL NOTICE
CERTAIN VALUE ADJUSTMENT EVENTS]
EXHIBIT B
FORM OF BORROWING BASE CERTIFICATE
[ ] [ ], 20[ ]
Reference is made to that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
As of the date hereof, the undersigned each certify that (i) all of the information set forth in Annex I attached hereto is true, correct and complete, (ii) each Specified Loan Asset set forth in Annex I attached hereto satisfies the conditions set forth in the definition thereof, (iii) no Event of Default or Servicer Default has occurred and no Unmatured Event of Default or Borrowing Base Deficiency exists under the Loan and Servicing Agreement; and (iv) solely with respect to itself, each of the representations and warranties contained in Sections 4.01, 4.02 and
4.03 of the Loan and Servicing Agreement are true and correct in all material respects (or, in the case of any representation and warranty that is already qualified by materiality, subject to the materiality standard set forth therein) other than any representation and warranty made as of a specific date.
[Remainder of Page Intentionally Left Blank]
1
Certified as of the date first written above.
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC,
as the Borrower
By:
Name:
Title:
FEPC FUND SERVICER LLC,
as the Servicer
By:
Name:
Title:
2
ANNEX I TO EXHIBIT B
BORROWING BASE REPORT
(see attached)
3
EXHIBIT C
FORM OF DISBURSEMENT REQUEST
(Disbursements from Unfunded Exposure Account and Reinvestments of Principal Collections) [Date]
(First Eagle Private Credit Fund SPV, LLC)
Xxxxxx Xxxxxxx Senior Funding, Inc., as the Administrative Agent
0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: Servicing Team Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
U.S. Bank Trust Company, National Association, as the Collateral Agent
000 X. XxXxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
Re: Loan and Servicing Agreement, dated as of September 22, 2023 Ladies and Gentlemen:
This Disbursement Request is delivered to you pursuant to Section [2.04(d)][2.18(a)] of that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the
1
"Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
The undersigned, being a duly elected Responsible Officer of the Servicer and holding the office set forth below such officer's name, hereby certifies as follows:
[1. Pursuant to Section 2.04(d) of the Loan and Servicing Agreement, the Servicer on behalf of the Borrower hereby requests a disbursement (a "Disbursement") from the Unfunded Exposure Account in the amount of [$][CAD][EUR][GBP][AUD] to fund [ ]1, such Disbursement to be paid to the account of the Borrower as set forth in the Loan and Servicing Agreement.]
[1. Pursuant to Section 2.18(a) of the Loan and Servicing Agreement, the Servicer on behalf of the Borrower hereby requests a disbursement (a "Disbursement") of Principal Collections from the Principal Collection Subaccount in the amount of [$][CAD][EUR][GBP][AUD] to reinvest in additional Eligible Loan Assets to be Granted under the Loan and Servicing Agreement: [ ]2.]
2. The Servicer on behalf of the Borrower hereby requests that such Disbursement be made on the following date: .
[3. In connection with a Disbursement pursuant to Section 2.18(a) of the Loan and Servicing Agreement, attached to this Disbursement Request is a true, correct and complete calculation of the Borrowing Base and all components thereof.]
1 Specific asset to be funded from the Disbursement.
2 Specific asset to be funded from the Disbursement.
2
effect to such Disbursement and to the application of the proceeds therefrom, as though made on and as of such date, except to the extent relating to an earlier date;
The undersigned certifies that all information contained herein [and in the attached Borrowing Base Certificate], as applicable, is true, correct and complete as of the date hereof.
[ATTACH BORROWING BASE CERTIFICATE AND LOAN ASSET SCHEDULE FOR DISBURSEMENTS PURSUANT TO SECTION 2.18(a) OF THE LOAN AND SERVICING AGREEMENT]
[Remainder of Page Intentionally Left Blank]
3
IN WITNESS WHEREOF, the undersigned has executed this Disbursement Request as of the date first written above.
FEPC FUND SERVICER LLC,
as the Servicer
By:
Name:
Title:
4
EXHIBIT D
FORM OF NOTICE OF BORROWING3
NOTICE OF BORROWING
[Date]
(First Eagle Private Credit Fund SPV, LLC) To: Xxxxxx Xxxxxxx Senior Funding, Inc.,
as the Administrative Agent 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: Servicing Team Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
Re: Loan and Servicing Agreement, dated as of September 22, 2023 Ladies and Gentlemen:
This Notice of Borrowing is delivered to you pursuant to Sections 2.02 and 3.02 of that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral
3 NTD: For syndicated deals, to include syndicate lender address information.
1
agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
The undersigned, being a duly elected Responsible Officer of the Borrower, and holding the office set forth below such officer's name, hereby certifies as follows:
[1. The Borrower hereby requests an Advance in the principal amount of [$][CAD][EUR][GBP][AUD] .4 Such Advance shall be deposited into the account identified in the Loan and Servicing Agreement.]
[1. Pursuant to Section 2.04(d), the Borrower hereby requests an Advance in the principal amount of [$][CAD][EUR][GBP][AUD] .5 Such Advance shall be deposited into the Unfunded Exposure Account.]
.
[5. In connection with such Advance, the Transferor shall deposit [$][CAD][EUR][GBP][AUD] into the Unfunded Exposure Account in connection with any Delayed Draw Loan Asset or any Revolving Loan, as applicable, funded by such Advance.]
4 The amount of such Advance shall not cause Advances Outstanding to exceed the Borrowing Base; provided
that the amount of such Advance must be at least equal to the dollar equivalent of $500,000.
5 The amount of such Advance shall not exceed the Aggregate Unfunded Exposure Amount.
2
the proceeds therefrom, as though made on and as of such date (other than any representation or warranty that is made as of a specific date);
5.03 and 5.04 in any material respect (or, in the case of any covenant that is already qualified by materiality, subject to the materiality standard set forth therein).
[ATTACH BORROWING BASE CERTIFICATE AND LOAN ASSET SCHEDULE]
[Remainder of Page Intentionally Left Blank]
3
IN WITNESS WHEREOF, the undersigned has executed this Notice of Borrowing as of the date first written above.
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC,
as the Borrower
By:
Name:
Title:
4
EXHIBIT E
FORM OF NOTICE OF REDUCTION
(Reduction of Advances Outstanding) [Date]
(First Eagle Private Credit Fund SPV, LLC)
Xxxxxx Xxxxxxx Senior Funding, Inc., as the Administrative Agent
0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: Servicing Team Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
U.S. Bank Trust Company, National Association, as the Collateral Agent
000 X. XxXxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
Re: Loan and Servicing Agreement, dated as of September 22, 2023 Ladies and Gentlemen:
This Notice of Reduction is delivered to you pursuant to Section 2.16(a) of that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and
1
assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
The undersigned, being a duly elected Responsible Officer of the Borrower, and holding the office set forth below such officer's name, hereby certifies as follows:
(the "Advance Reduction").
The undersigned certifies that all information contained herein and in the attached Borrowing Base Certificate is true, correct and complete as of the date hereof.
[ATTACH BORROWING BASE CERTIFICATE]
[Remainder of Page Intentionally Left Blank]
2
IN WITNESS WHEREOF, the undersigned has executed this Notice of Reduction as of the date first written above.
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC,
as the Borrower
By:
Name:
Title:
3
EXHIBIT F
FORM OF NOTICE OF TERMINATION/PERMANENT REDUCTION
[Date]
(First Eagle Private Credit Fund SPV, LLC) Xxxxxx Xxxxxxx Senior Funding, Inc.,
as the Administrative Agent 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: Servicing Team Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
U.S. Bank Trust Company, National Association, as the Collateral Agent
000 X. XxXxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
Re: Loan and Servicing Agreement, dated as of September 22, 2023 Ladies and Gentlemen:
This Notice of Reduction is delivered to you pursuant to Section 2.16(b) of that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to
1
time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
The undersigned, being a duly elected Responsible Officer of the Borrower, and holding the office set forth below such officer's name, hereby certifies as follows:
[1. Pursuant to Section 2.16(b) of the Loan and Servicing Agreement, the Borrower desires to terminate the Loan and Servicing Agreement and the other Transaction Documents (the "Termination") by making a payment in full of all of the Advances Outstanding, all accrued and unpaid Yield and Fees, any Breakage Fees, Increased Costs, all accrued and unpaid Administrative Expenses, all accrued and unpaid costs and expenses of the Administrative Agent and Lenders, payment of any Prepayment Premium pro rata to each Lender and payment of all other Obligations (other than unmatured contingent indemnification obligations).]
[1. Pursuant to Section 2.16(b) of the Loan and Servicing Agreement, the Borrower desires to permanently reduce in part the Facility Amount by the amount of [$][CAD][EUR][GBP][AUD] (the "Permanent Reduction").]
2. The Borrower hereby requests that such [Termination][Permanent Reduction] be made on the following date: .
[3. Attached to this Notice of Permanent Reduction is a true, correct and complete calculation of the Borrowing Base and all components thereof.]
The undersigned certifies that all information contained herein and in the attached Borrowing Base Certificate is true, correct and complete as of the date hereof.
[ATTACH BORROWING BASE CERTIFICATE]
[Remainder of Page Intentionally Left Blank]
2
IN WITNESS WHEREOF, the undersigned has executed this Notice of [Termination][Permanent Reduction] as of the date first written above.
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC,
as the Borrower
By:
Name:
Title:
3
EXHIBIT G
FORM OF CERTIFICATE OF CLOSING ATTORNEYS
[Date]
(First Eagle Private Credit Fund SPV, LLC)
U.S. Bank National Association, as the Collateral Custodian 0000 Xxxx Xxx
Florence, SC 29501
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
with a copy to:
Xxxxxx Xxxxxxx Senior Funding, Inc., as the Administrative Agent
0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: Servicing Team Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
Re: Loan and Servicing Agreement, dated as of September 22, 2023 Ladies and Gentlemen:
This Certificate of Closing Attorney is delivered to you pursuant to Section [3.02(a)(ii)][3.04(b)] of that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor
1
(together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
The undersigned acknowledges that it is in possession of the Required Loan Documents.
Very truly yours.
By:
Name:
Title:
2
EXHIBIT H
FORM OF SERVICING REPORT
(see attached)
EXHIBIT I
FORM OF SERVICER'S CERTIFICATE (SERVICING REPORT)
[Date]
(First Eagle Private Credit Fund SPV, LLC) Xxxxxx Xxxxxxx Senior Funding, Inc.,
as the Administrative Agent 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: Servicing Team Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
U.S. Bank Trust Company, National Association, as the Collateral Agent
000 X. XxXxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
Xxxxxx Xxxxxxx Bank, N.A. 000 Xxxxx Xxxx Xxxxxx
Salt Lake City, Utah 84111-2215 Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
Re: Loan and Servicing Agreement, dated as of September 22, 2023 Ladies and Gentlemen:
1
This Servicer's Certificate is delivered to you pursuant to Section 6.08(c) of that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns, in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement. This Servicer's Certificate relates to the Servicing Report set forth on the attached Schedule A.
[Remainder of Page Left Intentionally Blank]
2
IN WITNESS WHEREOF, the undersigned has caused this Servicer's Certificate to be duly executed as of the date first written above.
FEPC FUND SERVICER LLC,
as the Servicer
By:
Name:
Title:
3
SCHEDULE A
SERVICING REPORT
(see attached)
4
EXHIBIT J
FORM OF RELEASE OF REQUIRED LOAN DOCUMENTS
[Date]
(First Eagle Private Credit Fund SPV, LLC) Xxxxxx Xxxxxxx Senior Funding, Inc.,
as the Administrative Agent 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: Servicing Team Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
U.S. Bank Trust Company, National Association, as the Collateral Agent
000 X. XxXxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
Re: Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and
1
U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
Ladies and Gentlemen:
In connection with the administration of the Required Loan Documents held by the Collateral Custodian, for the benefit of the Secured Parties, under the Loan and Servicing Agreement, we request the release of the Required Loan Documents (or such documents as specified below) for the Loan Assets described below, for the reason indicated. All capitalized terms used but not defined herein shall have the meaning provided in the Loan and Servicing Agreement.
Obligor's Name, Address and Zip Code:
Loan Asset Number:
Loan Asset File:
Reason for Requesting Documents (check one)
1. Loan Asset paid in full. (The Servicer hereby certifies that all amounts received in connection with such Loan Asset have been credited to the Collection Account.)
2. Loan Asset liquidated by . (The Servicer hereby certifies that all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Collection Account.)
3. Loan Asset in foreclosure.
4. Loan Asset returned due to a failure to satisfy the Review Criteria pursuant to Section 11.02(b)(i) of the Loan and Servicing Agreement.
5. The entirety of the Collateral has been released following the Collection Date.
6. Loan Asset released from the Lien of the Collateral Agent in accordance with Section 11.09 of the Loan and Servicing Agreement due to delivery to the Collateral Agent in error or pursuant to Section 2.14 of the Loan and Servicing Agreement (the Borrower hereby states that the conditions to such release have been met in accordance with Section(s) of the Loan and Servicing Agreement).
7. Other (explain).
If box 1 or 2 above is checked, and if all or part of the Required Loan Documents were previously released to us, please release to us the Required Loan Documents requested in our
2
previous request and receipt on file with you, as well as any additional documents in your possession relating to the specified Loan Asset.
If box 3, 4 or 5 above is checked, upon our return of all of the above Required Loan Documents to you as the Collateral Custodian please acknowledge your receipt by signing in the space indicated below, and returning this form.
[Remainder of Page Left Intentionally Blank]
3
FEPC FUND SERVICER LLC,
as the Servicer
By:
Name:
Title:
Acknowledgement of the Required Loan Documents returned to the Collateral Custodian.
U.S. BANK NATIONAL ASSOCIATION,
as the Collateral Custodian
By:
Name:
Title:
[Signatures Continue]
4
Consent of the Administrative Agent:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as the Administrative Agent
By:
Name:
Title:
5
EXHIBIT K
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (this "Assignment and Acceptance") is dated as of the Effective Date set forth below and is entered into by and between [ ] (the "Assignor") and [ ] (the "Assignee"). Capitalized terms used but not defined herein shall have the meanings given to them in the Loan and Servicing Agreement identified below (the "Loan and Servicing Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Loan and Servicing Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor's rights and obligations as a Lender under the Loan and Servicing Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Loan and Servicing Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the "Assigned Interest"). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.
1
as the servicer, the lenders from time to time party thereto, Xxxxxx Xxxxxxx Senior Funding, Inc., as administrative agent, U.S. Bank Trust Company, National Association, as the collateral agent, and
U.S. Bank National Association, as the account bank and the collateral custodian.
Facility Assigned |
Aggregate Amount of Commitment for all Lenders |
Amount of Commitment Assigned |
Percentage Assigned of Commitment6 |
Advances |
$ |
$ |
% |
Effective Date: , 20
2
6 Set forth to at least 9 decimals, as a percentage of the Commitment of all Lenders thereunder.
3
The terms set forth in this Assignment and Acceptance are hereby agreed to:
ASSIGNOR
[ ]
By:
Name:
Title:
ASSIGNEE
[ ]
By:
Name:
Title:
4
Accepted:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent
By:
Name:
Title: [Consented to:
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC,
as the Borrower
By:
Name:
Title:]7
5
7 Insert Borrower consent only to the extent required under Section 12.04(a) of the Loan and Servicing Agreement.
6
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE LOAN AND SERVICING AGREEMENT STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ACCEPTANCE
7
8
EXHIBIT L-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Loan and Servicing Agreement, dated as of September
22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
Pursuant to the provisions of Section 2.11 of the Loan and Servicing Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Advance(s) (as well as any note(s) evidencing such Advance(s)) in respect of which it is providing this certificate, (ii) it is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a "10 percent shareholder" of the Borrower or its sole regarded owner within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a "controlled foreign corporation" related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
[NAME OF XXXXXX]
1
Date: [ ]
By:
Name:
Title:
2
EXHIBIT L-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
Pursuant to the provisions of Section 2.11 of the Loan and Servicing Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a "10 percent shareholder" of the Borrower or its sole regarded owner within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a "controlled foreign corporation" related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
[NAME OF XXXXXX]
3
Date: [ ]
By:
Name:
Title:
4
EXHIBIT L-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Loan and Servicing Agreement, dated as of September
22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
Pursuant to the provisions of Section 2.11 of the Loan and Servicing Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a "bank" extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a "10 percent shareholder" of the Borrower or its sole regarded owner within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a "controlled foreign corporation" related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with an IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
[NAME OF XXXXXX]
5
Date: [ ]
By:
Name:
Title:
EXHIBIT L-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Loan and Servicing Agreement, dated as of September
22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
Pursuant to the provisions of Section 2.11 of the Loan and Servicing Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Advance(s) (as well as any note(s) evidencing such Advance(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Advance(s) (as well as any note(s) evidencing such Advance(s)), (iii) with respect to the extension of credit pursuant to this Loan and Servicing Agreement or any other Transaction Document, neither the undersigned nor any of its direct or indirect partners/members is a "bank" extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a "10 percent shareholder" of the Borrower or its sole regarded owner within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a "controlled foreign corporation" related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
[NAME OF XXXXXX]
Date: [ ]
By:
Name:
Title:
EXHIBIT M
FORM OF JOINDER SUPPLEMENT
JOINDER SUPPLEMENT, dated as of the date set forth in Item 1 of Schedule I hereto, among the financial institution identified in Item 2 of Schedule I hereto, FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC, as the borrower (the "Borrower") and XXXXXX XXXXXXX SENIOR FUNDING, INC., as the administrative agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, this Joinder Supplement is being executed and delivered under Section [2.19][12.04] of the Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement; and
WHEREAS, the party set forth in Item 2 of Schedule I hereto (the "Proposed Lender") wishes to become a Lender designated as a Lender party to the Loan and Servicing Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
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IN WITNESS WHEREOF, the parties hereto have caused this Joinder Supplement to be executed by their respective duly authorized officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
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SCHEDULE I TO JOINDER SUPPLEMENT
COMPLETION OF INFORMATION AND SIGNATURES FOR JOINDER SUPPLEMENT
Re: Loan and Servicing Agreement, dated as of September 22, 2023, among First Eagle Private Credit Fund SPV, LLC, as Borrower, the other parties thereto and Xxxxxx Xxxxxxx Senior Funding, Inc., as Administrative Agent.
Item 1: Date of Joinder Supplement:
Item 2: Proposed Lender:
Item 3: Commitment:
Item 4: Signatures of Parties to Agreement:
, as Proposed Lender
By:
Name: Title:
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FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC,
as Borrower
By:
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent
By:
Name:
Title:
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ADDRESS FOR NOTICES AND
WIRE INSTRUCTIONS
SCHEDULE II TO JOINDER SUPPLEMENT
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FORM OF JOINDER EFFECTIVE NOTICE
SCHEDULE III TO JOINDER SUPPLEMENT
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To: [Name and address of the Borrower, Collateral Agent and Proposed Lender]
The undersigned is the Administrative Agent under the Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"),
U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. [Note: attach copies of Schedules I and II from such Joinder Supplement.] Terms defined in such Joinder Supplement are used herein as therein defined.
Pursuant to such Joinder Supplement, you are advised that the Joinder Effective Date for [Name of Proposed Lender] will be and such Proposed Lender will be a Lender designated as a Lender with a Commitment of .
Very truly yours,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent
By:
Name:
Title:
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EXHIBIT N
FORM OF POWER OF ATTORNEY FOR SERVICER
[Date]
This Power of Attorney is executed and delivered by FEPC Fund Servicer LLC, as the Servicer under the Loan and Servicing Agreement (each as defined below), to [ ], as the [Collateral Agent]/[Administrative Agent] under the Loan and Servicing Agreement (together with its successors and assigns in such capacity, the "Attorney"), pursuant to that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
No person to whom this Power of Attorney is presented, as authority for the Attorney to take any action or actions contemplated hereby, shall be required to inquire into or seek confirmation from the Servicer as to the authority of the Attorney to take any action described below, or as to the existence of or fulfillment of any condition to this Power of Attorney, which is intended to grant to the Attorney unconditionally the authority to take and perform the actions contemplated herein, and the Servicer irrevocably waives any right to commence any suit or action, in law or equity, against any person or entity that acts in reliance upon or acknowledges the authority granted under this Power of Attorney. The power of attorney granted hereby is coupled with an interest and may not be revoked or canceled by the Servicer until all obligations of the Borrower under the Transaction Documents have been indefeasibly paid in full and the Attorney has provided its written consent thereto (which consent shall not be unreasonably withheld or delayed).
FEPC Fund Servicer LLC, as the Servicer, hereby irrevocably constitutes and appoints the Attorney (and all officers, employees or agents designated by the Attorney), solely in connection with the enforcement of the rights and remedies of the Administrative Agent, the Collateral Agent, the Lender and the other Secured Parties under the Loan and Servicing Agreement and in connection with notifying Obligors of the Collateral Agent's interest in the Collateral pursuant to Section 5.01(dd) of the Loan and Servicing Agreement, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the Servicer's place and stead and at the Servicer's expense and in the Servicer's name or in the Attorney's own name, from time to time in the Attorney's discretion, to take any and all appropriate action and to execute and deliver any and all documents and instruments that may be necessary or desirable to exercise the rights of the Servicer under the Loan and Servicing
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Agreement and the other Transaction Documents, and, without limiting the generality of the foregoing, hereby grants to the Attorney the power and right, on its behalf, without notice to or assent by it, to do the following in connection with exercising the rights of the Servicer under the Loan and Servicing Agreement: (a) open mail for the Servicer, and ask, demand, collect, give acquittances and receipts for, take possession of, or endorse and receive payment of, any checks, drafts, notes, acceptances, or other instruments for the payment of moneys due, and sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, and notices, in each case in connection with the Collateral; (b) effect any repairs to any of the Collateral, or continue or obtain any insurance with respect to the Collateral and pay all or any part of the premiums therefor and costs thereof, and make, settle and adjust all claims under such policies of insurance, and make all determinations and decisions with respect to such policies; (c) pay or discharge any taxes, Liens, or other encumbrances levied or placed on or threatened against the Collateral; (d) to the extent related to the Collateral and the transactions contemplated by the Transaction Documents, defend any suit, action or proceeding brought against the Servicer with respect to the Collateral if the Servicer does not defend such suit, action or proceeding or if the Attorney reasonably believes that it is not pursuing such defense in a manner that will maximize the recovery to the Attorney with respect to the Collateral, and settle, compromise or adjust any suit, action, or proceeding described above and, in connection therewith, give such discharges or releases as the Attorney may deem appropriate; (e) file or prosecute any claim, litigation, suit or proceeding in any court of competent jurisdiction or before any arbitrator, or take any other action otherwise deemed appropriate by the Attorney for the purpose of collecting any and all such moneys due to the Servicer with respect to the Collateral whenever payable and to enforce any other right in respect of the Collateral; (f) sell, transfer, pledge, make any agreement with respect to, or otherwise deal with the Collateral, and execute, in connection with such sale or action, any endorsements, assignments or other instruments of conveyance or transfer in connection therewith; (g) give any necessary receipts or acquittance for amounts collected or received under the Loan and Servicing Agreement; (h) make all necessary transfers of the Collateral in connection with any such sale or other disposition made pursuant to the Loan and Servicing Agreement; (i) execute and deliver for value all necessary or appropriate bills of sale, assignments and other instruments in connection with any such sale or other disposition of the Collateral, the Servicer hereby ratifying and confirming all that such Attorney (or any substitute) shall lawfully do or cause to be done hereunder and pursuant hereto; (j) send such notification forms as the Attorney deems appropriate to give notice to Obligors of the Secured Parties' interest in the Collateral; (k) sign any agreements, orders or other documents in connection with or pursuant to any Transaction Document; and (l) cause the certified public accountants then engaged by the Servicer to prepare and deliver to the Attorney at any time and from time to time, promptly upon the Attorney's request, any reports required to be prepared by or on behalf of the Servicer or the Borrower under the Transaction Documents, all as though the Attorney were the absolute owner of the Collateral for all purposes, and to do, at the Attorney's option and the Servicer's expense, at any time or from time to time, all acts and other things that the Attorney reasonably deems necessary to perfect, preserve or realize upon the Collateral and the Liens of the Collateral Agent, for the benefit of the Secured Parties, thereon (including without limitation the execution and filing of UCC financing statements and continuation statements), all as fully and effectively as the Servicer might do. The Servicer hereby ratifies, to the extent permitted by law, all that said attorneys shall lawfully do or cause to be done by virtue hereof. This Power of Attorney shall be
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construed in accordance with and governed by the laws of the State of New York. In accepting this Power of Attorney or exercising any rights hereunder, the [Collateral Agent]/[Administrative Agent] shall be entitled to all of its rights, protections, immunities and indemnities set forth in the Loan and Servicing Agreement.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, this Power of Attorney is executed by the Servicer as of the date first written above.
FEPC Fund Servicer LLC
By: Name:
Title:
Sworn to and subscribed before me this [ ], 20[ ]:
Notary Public
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EXHIBIT O
FORM OF POWER OF ATTORNEY FOR BORROWER
[Date]
This Power of Attorney is executed and delivered by First Eagle Private Credit Fund SPV, LLC, as the Borrower under the Loan and Servicing Agreement (each as defined below), to [ ], as the [Collateral Agent]/[Administrative Agent] under the Loan and Servicing Agreement (together with its successors and assigns in such capacity, the "Attorney"), pursuant to that certain Loan and Servicing Agreement, dated as of September 22, 2023 (as the same may be amended, modified, supplemented, restated or replaced from time to time in accordance with the terms thereof, the "Loan and Servicing Agreement"), by and among First Eagle Private Credit Fund SPV, LLC, as the borrower (together with its successors and assigns in such capacity, the "Borrower"), First Eagle Private Credit Fund, as the transferor (together with its successors and assigns in such capacity, the "Transferor"), FEPC Fund Servicer LLC, as the servicer (together with its successors and assigns in such capacity, the "Servicer"), each of the lenders from time to time party thereto (the "Lenders"), Xxxxxx Xxxxxxx Senior Funding, Inc., in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the account bank and the collateral custodian. Capitalized terms used but not defined herein shall have the meanings provided in the Loan and Servicing Agreement.
No person to whom this Power of Attorney is presented, as authority for the Attorney to take any action or actions contemplated hereby, shall be required to inquire into or seek confirmation from the Borrower as to the authority of the Attorney to take any action described below, or as to the existence of or fulfillment of any condition to this Power of Attorney, which is intended to grant to the Attorney unconditionally the authority to take and perform the actions contemplated herein, and the Borrower irrevocably waives any right to commence any suit or action, in law or equity, against any person or entity that acts in reliance upon or acknowledges the authority granted under this Power of Attorney. The power of attorney granted hereby is coupled with an interest and may not be revoked or canceled by the Borrower until all obligations of the Borrower under the Transaction Documents have been indefeasibly paid in full and the Attorney has provided its written consent thereto (which consent shall not be unreasonably withheld or delayed).
First Eagle Private Credit Fund SPV, LLC hereby irrevocably constitutes and appoints the Attorney (and all officers, employees or agents designated by the Attorney), solely in connection with the enforcement of the rights and remedies of the Administrative Agent, the Collateral Agent, the Lender and the other Secured Parties under the Loan and Servicing Agreement and in connection with notifying Obligors of the Collateral Agent's interest in the Collateral pursuant to Section 5.01(dd) of the Loan and Servicing Agreement, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the Borrower's place and stead and at the Borrower's expense and in the Borrower's name or in the Attorney's own name, from time to time in the Attorney's discretion, to take any and all appropriate action and to execute and deliver any and all documents and instruments that may be necessary or desirable to accomplish the purposes of the Loan and Servicing Agreement and the
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other Transaction Documents, and, without limiting the generality of the foregoing, hereby grants to the Attorney the power and right, on its behalf, without notice to or assent by it, to do the following: (a) open mail for the Borrower, and ask, demand, collect, give acquittances and receipts for, take possession of, or endorse and receive payment of, any checks, drafts, notes, acceptances, or other instruments for the payment of moneys due, and sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, and notices; (b) effect any repairs to any of the Borrower's assets, or continue or obtain any insurance and pay all or any part of the premiums therefor and costs thereof, and make, settle and adjust all claims under such policies of insurance, and make all determinations and decisions with respect to such policies; (c) pay or discharge any taxes, Liens, or other encumbrances levied or placed on or threatened against the Borrower or the Borrower's property; (d) to the extent related to the Collateral and the transactions contemplated by the Transaction Documents, defend any suit, action or proceeding brought against the Borrower if the Borrower does not defend such suit, action or proceeding or if the Attorney reasonably believes that it is not pursuing such defense in a manner that will maximize the recovery to the Attorney, and settle, compromise or adjust any suit, action, or proceeding described above and, in connection therewith, give such discharges or releases as the Attorney may deem appropriate; (e) file or prosecute any claim, litigation, suit or proceeding in any court of competent jurisdiction or before any arbitrator, or take any other action otherwise deemed appropriate by the Attorney for the purpose of collecting any and all such moneys due to the Borrower whenever payable and to enforce any other right in respect of the Borrower's property;
(f) sell, transfer, pledge, make any agreement with respect to, or otherwise deal with, any of the Borrower's property, and execute, in connection with such sale or action, any endorsements, assignments or other instruments of conveyance or transfer in connection therewith; (g) give any necessary receipts or acquittance for amounts collected or received under the Loan and Servicing Agreement; (h) make all necessary transfers of the Collateral in connection with any such sale or other disposition made pursuant to the Loan and Servicing Agreement; (i) execute and deliver for value all necessary or appropriate bills of sale, assignments and other instruments in connection with any such sale or other disposition of the Collateral, the Borrower hereby ratifying and confirming all that such Attorney (or any substitute) shall lawfully do or cause to be done hereunder and pursuant hereto; (j) send such notification forms as the Attorney deems appropriate to give notice to Obligors of the Secured Parties' interest in the Collateral; (k) sign any agreements, orders or other documents in connection with or pursuant to any Transaction Document; and (l) cause the certified public accountants then engaged by the Borrower to prepare and deliver to the Attorney at any time and from time to time, promptly upon the Attorney's request, any reports required to be prepared by or on behalf of the Borrower under the Transaction Documents, all as though the Attorney were the absolute owner of the Borrower's property for all purposes, and to do, at the Attorney's option and the Borrower's expense, at any time or from time to time, all acts and other things that the Attorney reasonably deems necessary to perfect, preserve or realize upon the Collateral and the Liens of the Collateral Agent, for the benefit of the Secured Parties, thereon (including without limitation the execution and filing of UCC financing statements and continuation statements), all as fully and effectively as the Borrower might do. The Borrower hereby ratifies, to the extent permitted by law, all that said attorneys shall lawfully do or cause to be done by virtue hereof. This Power of Attorney shall be construed in accordance with and governed by the laws of the State of New York. In accepting this Power of Attorney or exercising any rights hereunder, the [Collateral Agent]/[Administrative
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Agent] shall be entitled to all of its rights, protections, immunities and indemnities set forth in the Loan and Servicing Agreement.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, this Power of Attorney is executed by the Borrower as of the date first written above.
FIRST EAGLE PRIVATE CREDIT FUND SPV, LLC
By:
Name:
Title:
Sworn to and subscribed before me this [ ], 20[ ]:
Notary Public
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EXHIBIT P
FORM OF EQUITY CURE NOTICE
[Date]8
(First Eagle Private Credit Fund SPV, LLC) Xxxxxx Xxxxxxx Senior Funding, Inc.,
as the Administrative Agent 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: FID Secured Lending Group Email: (for borrowing requests) xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attention: Servicing Team Email: (for borrowing requests)
xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx Email: (for all other purposes) xxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx
U.S. Bank Trust Company, National Association, as the Collateral Agent
000 X. XxXxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000
Attention: Global Corporate Trust - First Eagle Private Credit Fund SPV, LLC Email: Xxxxx.Xxxxx.XX@xxxxxx.xxx
Ladies and Gentlemen:
Reference is made to the Loan and Servicing Agreement, dated as of September 22, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan and Servicing Agreement"), among First Eagle Private Credit Fund SPV, LLC, a Delaware limited liability company, as the borrower (the "Borrower"), FEPC Fund Servicer LLC, as the servicer, First Eagle Private Credit Fund, as the transferor, Xxxxxx Xxxxxxx Senior Funding, Inc., as administrative agent (the "Administrative Agent"), U.S. Bank Trust Company, National Association, as the collateral agent, and U.S. Bank National Association, as the
8 This notice will be required to be delivered within three (3) Business Days after the Borrowing Base Deficiency.
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account bank and the collateral custodian, and the Lenders from time to time party thereto. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Loan and Servicing Agreement.
The undersigned acknowledges that the Administrative Agent has provided notice (a "BBD Notice") to the Borrower indicating that a Borrowing Base Deficiency exists as of [DATE] and that the amount required under the Loan and Servicing Agreement to cure the Borrowing Base Deficiency is $[] (the "Equity Cure Amount"). In connection therewith, the undersigned hereby represents, warrants and covenants to the Administrative Agent as follows (it being understood that the failure of any of the following to be true, or the failure to deliver any item required as set forth below, shall each constitute an Event of Default to the extent set forth under the Loan and Servicing Agreement):
Either (A) the Transferor intends to contribute such Equity Cure Amount (in combination with the other cures thereof permitted under Section 2.06(a) of the Loan and Servicing Agreement) directly or indirectly to the Borrower in the form of an additional capital contribution as follows:
(B) the Transferor has other sources of funds (including from proceeds of borrowings under one or more credit facilities) sufficient to cure such Borrowing Base Deficiency (as evidenced in the attached credit agreement or other agreement (or excerpts thereof which may be redacted as reasonably necessary to permit disclosure thereof, subject to confidentiality obligations, but which shall provide sufficient evidence of such other sources of funds), reporting packages or financial statements set forth on Schedule III hereto with respect to each such source of funds and the availability of funds thereunder) and the proceeds of such funds will be contributed directly or indirectly to the Borrower.
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Not later than [], such contribution shall be made in an amount not less than the9 Insert the date that is within ten (10) Business Days of the date this notice is delivered to the Administrative Agent
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in the case of clause (A) and within three (3) Business Days of the date this notice is delivered to the
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Equity Cure Amount (in combination with the other cures thereof permitted under Section 2.06(a) of the Loan and Servicing Agreement).
In addition, without limitation of the foregoing, the undersigned acknowledges that if on or after the date hereof and prior to the undersigned making or causing to be made the payment referred to in preceding paragraph above, the Administrative Agent provides notice (a "Subsequent BBD Notice") to the undersigned indicating that the then-current Borrowing Base Deficiency is greater than the amount indicated in the notice from the Administrative Agent referred to in the second paragraph hereof (taking into account the amount initially indicated), the provisions of Section 2.06 shall be applicable to such subsequent Borrowing Base Deficiency.
[The remainder of this page is intentionally left blank.]
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in the case of clause (A) and within three (3) Business Days of the date this notice is delivered to the Administrative Agent in the case of clause (B).
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FIRST EAGLE PRIVATE CREDIT FUND SPV,
LLC, as Borrower
By: Name:
Title:
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