AMENDMENT NO. 7 TO CREDIT AGREEMENT
Exhibit (k)(15)
EXECUTION VERSION
AMENDMENT NO. 7 TO CREDIT AGREEMENT
AMENDMENT NO. 7 (this βAmendmentβ), dated as of June 5, 2024, to the Credit Agreement, dated as of June 14, 2017, by and among Credit Suisse Asset Management Income Fund, Inc., a Maryland corporation (the βBorrowerβ), the Banks party thereto, and State Street Bank and Trust Company, as agent for the Banks (in such capacity, the βAgentβ), as amended, supplemented or otherwise modified by Amendment No. 1, dated as of June 13, 2018, Amendment No. 2, dated as of June 12, 2019, Amendment No. 3, dated as of June 10, 2020, Amendment No. 4, dated as of June 9, 2021, Amendment No. 5, dated as of June 8, 2022, Omnibus Consent, dated as of May 22, 2023, and Amendment No. 6, dated as of June 7, 2023 (the βExisting Credit Agreementβ).
I.β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―Each term that is defined in the Existing Credit Agreement and not herein defined has the meaning ascribed thereto by the Existing Credit Agreement when used herein.
II.β―β―β―β―β―β―β―β―β―β―β―β―β―β―Prior to May 22, 2023, the Borrower notified the Agent that Credit Suisse Group AG would be acquired by or merged with or into UBS Group AG (the βAcquisitionβ). In anticipation of the Acquisition, the Agent, the Banks and the Borrower entered into the Omnibus Consent, dated as of May 22, 2023 (the βConsentβ), by and among the Agent, the Banks, the Borrower and other parties thereto, pursuant to which, among other things, the Agent and the Banks consented to the Acquisition and any Agreement Defaults (as defined in the Consent) arising as a result of the Acquisition. Subsequent to the date of the Consent the Acquisition was consummated.
III.β―β―β―β―β―β―β―β―β―β―β―β―β―Each party hereto hereby acknowledges that the Consent remains in full force and effect as of the date hereof.
IV.β―β―β―β―β―β―β―β―β―β―β―β―β―The Borrower desires to amend the Existing Credit Agreement upon the terms and conditions set forth herein, and all of the Banks and the Agent are willing to do so on the terms and conditions set forth herein.
Accordingly, in consideration of the Recitals and the covenants, conditions and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1.β―β―β―β―β―β―β―β―β―β―β―β―β―Defined Terms. For purposes hereof, the following terms have the following meanings when used herein:
βAdded Textβ means characters indicated textually in the same manner as the following example: double underlined text.
βMarked Credit Agreementβ means the copy of the Existing Credit Agreement attached hereto as Annex A.
βStricken Textβ means characters indicated textually in the same manner as the following example: stricken text.
2.β―β―β―β―β―β―β―β―β―β―β―β―β―The Existing Credit Agreement (excluding the Exhibits and Schedules thereto) is hereby amended to delete the Stricken Text and to add the Added Text, in each case as set forth in the Marked Credit Agreement (the Existing Credit Agreement, as so amended, the βAmended Credit Agreementβ).
3.β―β―β―β―β―β―β―β―β―β―β―β―β―Exhibit G of the Existing Credit Agreement is hereby amended and restated in its entirety in the form of Exhibit G hereto.
4.β―β―β―β―β―β―β―β―β―β―β―β―β―Paragraphs 1 through 3 of this Amendment shall not be effective until each of the following conditions are satisfied (the date, if any, on which such conditions shall have first been satisfied being referred to herein as the βAmendment Effective Dateβ):
(a) the Agent shall have received from the Borrower and each Bank either (i) a counterpart of this Amendment executed on behalf of such party, or (ii) written evidence satisfactory to the Agent (which may include facsimile transmission of a signed signature page of this Amendment) that each such party has executed a counterpart of this Amendment;
(b) the Agent shall have received from the Borrower a manually signed certificate from the Secretary of the Borrower, in all respects satisfactory to the Agent, (i) certifying as to (x) the incumbency of authorized persons of the Borrower executing this Amendment and (y) persons authorized to act on behalf of the Borrower in connection with the Loan Documents, including, without limitation, with respect to any Notice of Borrowing, (ii) attaching true, complete and correct copies of the resolutions duly adopted by the Managing Body of the Borrower approving this Amendment and the transactions contemplated hereby, all of which are in full force and effect on the date hereof, and (iii) certifying that the Borrowerβs Charter Documents, Offering Document, investment management agreement between the Borrower and the Investment Adviser and Custody Agreement have not been amended, supplemented or otherwise modified since June 7, 2023 or, if so, attaching true, complete and correct copies of each such amendment, supplement or modification;
(c) the Agent shall have received such documents and information as the Agent, at the request of any Bank, shall have requested in order to comply with βknow-your-customerβ and other anti-terrorism, anti-money laundering and similar rules and regulations and related policies; and
(d) the Borrower shall have paid all out-of-pocket fees and expenses of the Agent (including, without limitation, reasonable legal fees and disbursements of counsel to the Agent) in connection herewith.
5.β―β―β―β―β―β―β―β―β―β―β―β―β―The Borrower (a) reaffirms and admits the validity and enforceability of each Loan Document and all of its obligations thereunder, (b) agrees and admits that it has no defense to or offset against any such obligation, and (c) represents and warrants that, as of the Amendment Effective Date (i) no Default has occurred and is continuing, and (ii) the representations and warranties of the Borrower contained in the Amended Credit Agreement and the other Loan Documents are true on and as of the Amendment Effective Date with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
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6.β―β―β―β―β―β―β―β―β―β―β―β―Except as expressly set forth herein (including the Amended Credit Agreement), this Amendment shall not, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of, the Banks or the Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.
7.β―β―β―β―β―β―β―β―β―β―β―β―This Amendment constitutes a Loan Document.
8.β―β―β―β―β―β―β―β―β―β―β―β―This Amendment may be executed in any number of counterparts, all of which when taken together shall constitute a single contract. It shall not be necessary in making proof of this Amendment to produce or account for more than one counterpart executed and delivered (including by facsimile, or by e-mail transmission of a signed signature page of this Amendment) by the party to be charged. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, emailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart thereof. The words βexecutionβ, βsignedβ, βsignatureβ, βdeliveryβ and words of like import in or relating to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Agent or any Bank to accept electronic signatures in any form or format without its prior written consent. Without limiting the generality of the foregoing, the Borrower hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Agent, the Bank and/or the Borrower, electronic images of this Amendment (including with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (ii) waives any argument, defense or right to contest the validity or enforceability of this Amendment based solely on the lack of paper original copies thereof, including with respect to any signature pages thereto.
9.β―β―β―β―β―β―β―β―β―β―β―β―THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
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| CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC. | ||
| By: | /s/ Xxxx Xxx Xxxxxxxx | |
| Name: | Xxxx Xxx Xxxxxxxx | |
| Title: | Chief Financial Officer and Treasurer | |
Credit Suisse Asset Management Income Fund, Inc. - Amendment No. 7 to Credit Agreement
| STATE STREET BANK AND TRUST COMPANY, as a Bank and as the Agent | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Vice President | |
Credit Suisse Asset Management Income Fund, Inc. - Amendment No. 7 to Credit Agreement
EXHIBIT G
FORM OF
BORROWING BASE REPORT
Date __________
[Address(es) (a Borrowing
Base
Report that accompanies a Notice of
Borrowing need only be sent to the Agent,
while periodic Borrowing Base Reports
need to be sent
to the Agent and each Bank)]
Attention:
Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement, dated as of June 14, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ), by and among Credit Suisse Asset Management Income Fund, Inc., a Maryland corporation (the βBorrowerβ), the Banks and other lending institutions party thereto and State Street Bank and Trust Company, as Agent for the Banks. Each term that is defined in the Credit Agreement and not herein defined has the meaning ascribed thereto by the Credit Agreement when used herein.
This Borrowing Base Report is delivered to you pursuant to [Section 2.02(a) or Section 5.01(c)] of the Credit Agreement. The Borrower hereby certifies to you as follows:
| (a) | as of the close of business on [Date]1 (the βNotice Timeβ), the Borrowing Base was $____________ (the βApplicable Borrowing Baseβ), |
| (b) | Annex 1 attached hereto is a true and accurate detailed calculation of the Borrowing Base as of the Notice Time, |
| (c) | the aggregate outstanding principal balance of the Loans [[immediately AFTER giving effect to the making of the Loans requested in the Notice of Borrowing dated __________2] or [at the Notice Time3]]: $_____________________ (the βApplicable Loan Amountβ), and |
| (d) | the Applicable Borrowing Base [is less than][equals][exceeds] the Applicable Loan Amount. |
| 1 | For a Borrowing Base Report delivered pursuant to Section 2.02(a) of the Credit Agreement, this date should be the Domestic Business Day immediately preceding the proposed borrowing date related thereto. For a Borrowing Base Report delivered pursuant to Section 5.01(c) of the Credit Agreement, this date should be the last Domestic Business Day of the immediately preceding calendar week. | |
| 2 | For use when borrowing. | |
| 3 | For periodic reporting. |
| CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
Annex 1
to
Borrowing Base Report
| CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC. | [Date of Reported Figures] |
| FACILITY AMOUNT | [$ | ] | ||
| (i) | 90% of the aggregate Asset Value of all Eligible Government Securities | [ | ] | |
| (ii) | 80% of the aggregate Asset Value of all Eligible Commercial Paper | [ | ] | |
| (iii) | 80% of the aggregate Asset Value of all Tier 1 Corporate Debt Securities | [ | ] | |
| (iv) | 70% of the aggregate Asset Value of all Tier 2 Corporate Debt Securities | [ | ] | |
| (v) | 60% of the aggregate Asset Value of all Tier 3 Corporate Debt Securities | [ | ] | |
| (vi) | 50% of the aggregate Asset Value of all Senior Loans | [ | ] | |
| BORROWING BASE | [$ | ] | ||
| Excess Amount to be excluded due to diversification requirements | [ | ] | ||
| BORROWING BASE with Diversification Adjustment | [$ | ] | ||
| MINIMUM ADJUSTED ASSET COVERAGE: 3.00:1.00 | [$ | ] | ||
| Maximum allowable Borrowing | [$ | ] | ||
| Ineligible Market | ||
| Diversification Requirements: | Value | |
| (1) if, but for this clause (1), in excess of 20% of the Borrowing Base value of all Eligible Commercial Paper and Tier 1 Corporate Debt Securities would be attributable to a single Issuer, the amount of such excess shall not be included in the calculation of the Borrowing Base | ||
| [$ | ] | |
| (2) if, but for this clause (2), in excess of 10% of the Borrowing Base value of all Tier 2 Corporate Debt Securities, Tier 3 Corporate Debt Securities and Senior Loans would be attributable to a single Issuer, the amount of such excess shall not be included in the calculation of the Borrowing Base | ||
| [$ | ] | |
| (3) if, but for this clause (3), in excess of 5% of the Borrowing Base value would be attributable to a single Foreign Issuer, the amount of such excess shall not be included in the calculation of the Borrowing Base | ||
| [$ | ] | |
| (4) if, but for this clause (4), in excess of 15% of the Borrowing Base value would be attributable to Foreign Issuers, the amount of such excess shall not be included in the calculation of the Borrowing Base | ||
| [$ | ] | |
| (5) if, but for this clause (5), in excess of 15% of the Borrowing Base value would be attributable to Eligible Loan Participations, the amount of such excess shall not be included in the calculation of the Borrowing Base | ||
| [$ | ] | |
| [$ | ] | |
| Adjusted Asset Coverage | ||
| Loan Payable | [$ | ] |
| Adjusted Net Assets | [$ | ] |
| [ | ] | |
CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC.
[Date of Reported Figures]
| $USD | ||
| Bank Loan Payable | [ | ] |
| Preferred Shares | [ | ] |
| Negative Cash/ Overdrafts | [ | ] |
| Total Borrowing | [ | ] |
| 40 Act Test | ||
| Total Borrowing | [ | ] |
| Total Assets | [ | ] |
| Borrowing - Max 33 1/3% of TA | [ | %] |
| Adjusted Net Assets | ||
| (A) Total Assets | [ | ] |
| Total Liabilities | [ | ] |
| Bank Loan Payable | [ | ] |
| (B) Ordinary Liabilities | [ | ] |
| Adjusted Total Net Assets (A - B) | [ | ] |
| Adjusted Asset Coverage | ||
| Adjusted Net Assets | [ | ] |
| Senior Securities & Loan Payable | [ | ] |
| Required Adjusted Net Asset Coverage: 3.00 | [ | ] |
| EXECUTION VERSIONANNEX A CREDIT AGREEMENT dated as of June 14, 2017 among CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC., STATE STREET BANK AND TRUST COMPANY, and the other lending institutions party hereto, and STATE STREET BANK AND TRUST COMPANY, in its capacity as Agent Prepared by: Xxxxx Xxxx Xxxxxxxx Xxxxxxx LLP 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 XXX\1043487.000096\615139066.1USA\1043487.000096\615139066.3 |
| TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 1 SECTION 1.01 Definitions 1 SECTION 1.02 Accounting Terms and Determination 23 SECTION 1.03 Split Ratings 23 SECTION 1.04 Rates; Term SOFR Conforming Changes 23 ARTICLE II THE CREDIT 24 SECTION 2.01 Commitments to Lend 24 SECTION 2.02 Notice of Borrowings 24 SECTION 2.03 Notice to Banks; Funding of Loans 25 SECTION 2.04 Loan Accounts; Notes; Records 26 SECTION 2.05 Mandatory Payments; Optional Prepayments 2726 SECTION 2.06 Interest Rates 28 SECTION 2.07 Fees 2928 SECTION 2.08 Termination and Reduction of Commitments 29 SECTION 2.09 General Provisions as to Payments 3029 SECTION 2.10 Computation of Interest and Fees 31 SECTION 2.11 Withholding Tax Exemption 31 ARTICLE III CONDITIONS 3332 SECTION 3.01 Effectiveness 33 SECTION 3.02 All Borrowings 3534 ARTICLE IV REPRESENTATIONS AND WARRANTIES 35 SECTION 4.01 Existence and Power; Investment Company 3635 SECTION 4.02 Authorization; Execution and Delivery: EEA Financial Institution; Etc. 36 SECTION 4.03 Noncontravention 36 SECTION 4.04 Governmental Authorizations; Private Authorization 3736 SECTION 4.05 Regulations T, U and X 3736 SECTION 4.06 Non-Affiliation with Banks 37 SECTION 4.07 Subsidiaries 37 SECTION 4.08 Financial Information. 37 USA\1043487.000096\615139066.1USA\1043487.000096\615139066.3 |
| SECTION 4.09 Material Litigation 37 SECTION 4.10 ERISA. 3837 SECTION 4.11 Taxes 3837 SECTION 4.12 Compliance. 38 SECTION 4.13 Fiscal Year 3938 SECTION 4.14 Full Disclosure 3938 SECTION 4.15 Offering Document 3938 SECTION 4.16 OFAC, Anti-Corruption and Other Regulations 39 SECTION 4.17 Title to Assets 39 ARTICLE V COVENANTS 4039 SECTION 5.01 Information 4039 SECTION 5.02 Payment of Obligations 4140 SECTION 5.03 Maintenance of Insurance 41 SECTION 5.04 Conduct of Business and Maintenance of Existence. 41 SECTION 5.05 Compliance with Laws 4241 SECTION 5.06 Inspection of Property, Books and Records 4241 SECTION 5.07 Indebtedness 42 SECTION 5.08 Liens 4342 SECTION 5.09 Consolidations, Mergers and Sales of Assets 43 SECTION 5.10 Use of Proceeds 43 SECTION 5.11 Compliance with Investment Policies and Restrictions 43 SECTION 5.12 Non-Affiliation with Banks 43 SECTION 5.13 Regulated Investment Company 4443 SECTION 5.14 No Subsidiary 4443 SECTION 5.15 ERISA 4443 SECTION 5.16 Fiscal Year 4443 SECTION 5.17 Margin Regulations 4443 SECTION 5.18 Custodian; Auditor 44 SECTION 5.19 Asset Coverage 44 SECTION 5.20 Maximum Amount 44 SECTION 5.21 Restricted Payments 44 SECTION 5.22 OFAC, Anti-Corruption and Other Regulations 44 USA\1043487.000096\615139066.1USA\1043487.000096\615139066.3 |
| SECTION 5.23 Further Assurances 4544 ARTICLE VI DEFAULTS 4544 SECTION 6.01 Events of Default 4544 SECTION 6.02 Remedies 4746 ARTICLE VII THE AGENT 47 SECTION 7.01 Appointment and Authorization 47 SECTION 7.02 Action by Agent 47 SECTION 7.03 Consultation with Experts 47 SECTION 7.04 Liability of Agent 4847 SECTION 7.05 Indemnification 48 SECTION 7.06 Credit Decision 48 SECTION 7.07 Successor Agent 4948 SECTION 7.08 Agent as Bank 4948 SECTION 7.09 Distribution by Agent 49 SECTION 7.10 Withholding Tax 49 SECTION 7.11 Erroneous Payments 5049 ARTICLE VIII CHANGE IN CIRCUMSTANCES 5251 SECTION 8.01 Additional Costs; Capital Adequacy. 5251 SECTION 8.02 Benchmark Replacement Settings 5453 SECTION 8.03 Illegality 5554 SECTION 8.04 [Reserved] 55 SECTION 8.05 Indemnity 5655 SECTION 8.06 Replacement Banks 5655 SECTION 8.07 Change of Law 56 SECTION 8.08 Delinquent Banks 56 ARTICLE IX MISCELLANEOUS 57 SECTION 9.01 Notices 57 SECTION 9.02 No Waivers 5958 SECTION 9.03 Expenses; Documentary Taxes; Indemnification 5958 SECTION 9.04 Set Off 59 SECTION 9.05 Amendments and Waivers 6059 SECTION 9.06 Successors and Assigns 60 USA\1043487.000096\615139066.1USA\1043487.000096\615139066.3 |
| SECTION 9.07 Governing Law; Submission to Jurisdiction 6362 SECTION 9.08 WAIVER OF JURY TRIAL 63 SECTION 9.09 Confidential Material 63 SECTION 9.10 USA Patriot Act 64 SECTION 9.11 Interest Rate Limitation 64 SECTION 9.12 Survival 6564 SECTION 9.13 Limitation on Liability 6564 SECTION 9.14 No Fiduciary Duty 65 SECTION 9.15 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 65 SECTION 9.16 Miscellaneous 6665 SECTION 9.17 Certain ERISA Matters 66 SECTION 9.18 Acknowledgement Regarding Any Supported QFCs 6867 Exhibits: Exhibit A - Form of Note Exhibit B - Form of Notice of Borrowing Exhibit C - Form of Notice of Conversion Exhibit D - Form of Notice of Repayment Exhibit E - Form of Compliance Certificate Exhibit F - Form of Assignment and Acceptance Exhibit G - Form of Borrowing Base Report Schedules: Schedule 1 - Addresses for Notices, Domestic Lending Office, Commitment Amounts and Commitment Percentages Schedule 2 - Copies of all shareholder action, Managing Body action, SEC action, or amendments or modification to the Charter Documents (including, without limitation, each proxy statement and certification of the tabulations of the vote taken in connection therewith) effecting a change to the Investment Policies and Restrictions USA\1043487.000096\615139066.1USA\1043487.000096\615139066.3 |
| CREDIT AGREEMENT CREDIT AGREEMENT, dated as of June 14, 2017, among CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC., a Maryland corporation (the βBorrowerβ), the Banks (as hereinafter defined) party hereto from time to time, and STATE STREET BANK AND TRUST COMPANY, as agent for the Banks (in such capacity, the βAgentβ). The parties hereto hereby agree as follows: ARTICLE I DEFINITIONS SECTION 1.01 Definitions. The following terms, as used herein, have the following meanings: βAdjusted Net Assetsβ means, as at any date of determination, an amount equal to (a) the Asset Value of the Total Assets minus (b) the Total Liabilities that are not Senior Securities Representing Indebtedness, minus (c) without duplication the sum of (i) the Asset Value of the Borrowerβs investments, if any, in any direct or indirect Subsidiaries (and including in any event, without duplication, the value of any assets of any such direct or indirect Subsidiary), plus (ii) the Asset Value of any assets of the Borrower constituting physical commodities. For purposes of calculating the Adjusted Net Assets, the amount of any liability included in Total Liabilities shall be equal to the greater of (i) the outstanding amount of such liability and (ii) the fair market value of all assets pledged, encumbered or otherwise segregated to secure such liability. βAdjusted Term SOFRβ means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment, provided that if Adjusted Term SOFR as so determined for any day shall ever be less than the Floor, then the Adjusted Term SOFR for such day shall be deemed to be the Floor for all purposes of this Agreement. βAdverse Claimβ means any Lien or other right, claim, encumbrance or any other type of preferential arrangement in, of or on any Personβs assets or properties (including the segregation thereof or the deposit thereof to satisfy margin or other requirements) in favor of any other Person other than, in the case of the Borrower, Liens permitted under Section 5.08(a), (b) or (c) hereof. βAffected Financial Institutionβ means (a) any EEA Financial Institution or (b) any UK Financial Institution. βAffiliateβ means, with respect to any Person (the βFirst Personβ) any other Person that (a) is an βAffiliated Personβ (within the meaning of the Investment Company Act) of such First Person, (b) is an βaffiliateβ (within the meaning of Section 23A of the Federal Reserve Act, as amended) of such First Person, or (c) is a Control Affiliate of such First Person. |
| βAggregate Commitment Amountβ means, as of any date, the aggregate of all Commitment Amounts as of such date. On the Effective Date, the Aggregate Commitment Amount is $85,000,000. βAgentβ has the meaning set forth in the preamble to this Agreement. βAgreementβ means this Credit Agreement, as amended, supplemented or otherwise modified. βAmendmentβ means Amendment No. 5, dated as of June 8, 2022, to this Agreement. βAmendment Effective Dateβ has the meaning set forth in the Amendment. βAmendment No. 7 Effective Dateβ means the βAmendment Effective Dateβ as such term is defined in Amendment No. 7, dated as of June 5, 2024, to this Agreement. βAnti-Corruption Lawsβ means, with respect to any Person, all laws, rules, and regulations of any jurisdiction applicable to such Person from time to time concerning or relating to bribery or corruption. βApplicable Fee Rateβ means (a) prior to the Amendment Effective Date, the applicable rate set forth from time to time in this Agreement at which the commitment fee accrues, and (b) as of any other date, a rate per annum equal to (i) in the event the outstanding principal balance of all Loans equals or exceeds 75% of the Aggregate Commitment Amount, 0.15%, and (ii) at all other times, 0.25%. βApplicable Lawβ means, with respect to any Person, any Law of any Authority, including, without limitation, all Federal and state banking or securities laws, to which such Person is subject or by which it or any of its property is bound. βApplicable Marginβ means (a) prior to the Amendment No. 7 Effective Date, the applicable margin set forth from time to time in this Agreement by reference to which interest accrues, and (b) as of any other date, 0.800.85%. βApproved Borrowing Amountβ means (a) $1,000,000 or an integral multiple of $100,000 in excess thereof, or (b) such lesser amount as shall be equal to the excess of the Aggregate Commitment Amount over the aggregate outstanding principal balance of all Loans. βAsset Valueβ means, as of any day of determination in respect of any asset of the Borrower, the Value of such asset computed by the Borrower in good faith in the manner such Value is required to be computed in accordance with the Pricing Procedures and Applicable Law, including, without limitation, the Investment Company Act; provided that (i) with respect to any asset that is not valued daily, the Asset Value of such asset shall be deemed zero for purposes of this definition, (ii) with respect to any asset the value of which is not based primarily upon the closing price thereof on an exchange, or the market price therefor determined by one or more pricing services or broker-dealers (other than a pricing service or broker-dealer that is an Affiliate of the Borrower or the Borrowerβs investment adviser, or that is otherwise not independent), the Asset Value of such asset shall be deemed zero for purposes of this definition, 2 |
| and (iii) with respect to any asset that is valued higher than either of the following (the βBase Priceβ): (x) the closing price thereof on an exchange, or (y) the market price therefor determined by one or more pricing services or broker-dealers (other than a pricing service or broker-dealer that is an Affiliate of the Borrower or the Borrowerβs investment adviser, or that is otherwise not independent), the Asset Value of such asset shall be deemed to be the Base Price for purposes of this definition. βAssigneeβ has the meaning set forth in Section 9.06(c) hereof. βAssignment and Acceptanceβ has the meaning set forth in Section 9.06(c) hereof. βAuthorityβ means any governmental or quasi-governmental authority (including the Financial Industry Regulatory Authority, stock exchanges, the SEC and any accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic), whether executive, legislative, judicial, administrative or other, or any combination thereof, including, without limitation, any Federal, state, territorial, county, municipal or other government or governmental or quasi-governmental agency, arbitrator, board, body, branch, bureau, commission, corporation, court, department, instrumentality, master, mediator, panel, referee, system or other political unit or subdivision or other entity of any of the foregoing, whether domestic or foreign. βAuthorized Signatoryβ means any duly authorized officer or other authorized Person of the Borrower, provided that the Agent shall have received a manually signed certificate of an officer of the Borrower bearing a manual specimen signature of such officer or other Person and such officer or other Person shall be reasonably satisfactory to the Agent. βAvailable Tenorβ means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of βInterest Periodβ pursuant to Section 8.02(d). βBail-In Actionβ 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. βBail-In Legislationβ 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, regulation, rule or requirement 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 3 |
| financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). βBankβ means each of State Street, each other lender named on the signature pages hereof, each Assignee which becomes a Bank pursuant to Section 9.06(c) hereof, and their respective successors. βBase Rateβ means, as of any day, the highest of (a) the Applicable Margin plus the Federal Funds Effective Rate as in effect on that day, (b) the Applicable Margin plus Adjusted Term SOFR as in effect on that day, and (c) the Applicable Margin plus the Overnight Bank Funding Rate. βBase Rate Loansβ means Loans bearing interest calculated by reference to the Base Rate. βBenchmarkβ means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then βBenchmarkβ means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 8.02(a). βBenchmark Replacementβ means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. βBenchmark Replacement Adjustmentβ 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 negative value or zero) that has been selected by the 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 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 Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time. βBenchmark Replacement Dateβ means the earliest to occur of the following events with respect to the then-current Benchmark: 4 |
| (a) in the case of clause (a) or (b) of the definition of βBenchmark Transition Event,β the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of βBenchmark Transition Event,β the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. For the avoidance of doubt, the βBenchmark Replacement Dateβ will be deemed to have occurred in the case of clause (a) or (b) 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). βBenchmark Transition Eventβ means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board of Governors, the FRBNY, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in 5 |
| the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative. For the avoidance of doubt, a βBenchmark Transition Eventβ 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). βBenchmark Transition Start Dateβ means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication). βBenefit Arrangementβ means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group. βBoard of Governorsβ means the Board of Governors of the Federal Reserve System. βBorrowerβ has the meaning set forth in the preamble to this Agreement. βBorrowingβ means a borrowing consisting of simultaneous Loans of the same Type and, in the case of a SOFR Borrowing, having the same Interest Period made by the Banks. βBorrowing Baseβ means, at the relevant time of reference thereto, an amount equal to the sum of the following items to the extent that they are classified as βassetsβ on the balance sheet of the Borrower in accordance with Generally Accepted Accounting Principles: (i) 90% of the aggregate Asset Value of all Eligible Government Securities; (ii) 80% of the aggregate Asset Value of all Eligible Commercial Paper; (iii) 80% of the aggregate Asset Value of all Tier 1 Corporate Debt Securities; (iv) 70% of the aggregate Asset Value of all Tier 2 Corporate Debt Securities; (v) 60% of the aggregate Asset Value of all Tier 3 Corporate Debt Securities; and (vi) 50% of the aggregate Asset Value of all Senior Loans; and (vii) 10% of the aggregate Asset Value of all Tier 4 Corporate Debt Securities; provided, however, that (1) if, but for this clause (1), in excess of 20% of the Borrowing Base value of all Eligible Commercial Paper and Tier 1 Corporate Debt Securities 6 |
| would be attributable to a single Issuer, the amount of such excess shall not be included in the calculation of the Borrowing Base; (2) if, but for this clause (2), in excess of 10% of the Borrowing Base value of all Tier 2 Corporate Debt Securities, Tier 3 Corporate Debt Securities and Tier 1 Senior Loans would be attributable to a single Issuer, the amount of such excess shall not be included in the calculation of the Borrowing Base; (3) if, but for this clause (3), in excess of 5% of the Borrowing Base value of all Tier 4 Corporate Debt Securities would be attributable to a single Foreign Issuer, the amount of such excess shall not be included in the calculation of the Borrowing Base; (4) if, but for this clause (4), in excess of 515% of the Borrowing Base value would be attributable to a single Foreign IssuerIssuers, the amount of such excess shall not be included in the calculation of the Borrowing Base; and (5) if, but for this clause (5), in excess of 15% of the Borrowing Base value would be attributable to Foreign Issuers, the amount of such excess shall not be included in the calculation of the Borrowing Base; (6) if, but for this clause (6), in excess of 15% of the Borrowing Base value would be attributable to Eligible Loan Participations, the amount of such excess shall not be included in the calculation of the Borrowing Base;. (7) if, but for this clause (7), in excess of 5% of the Borrowing Base value would be attributable to Tier 2 Senior Loans, the amount of such excess shall not be included in the calculation of the Borrowing Base; and (8) if, but for this clause (8), in excess of 10% of the Borrowing Base value would be attributable to Tier 4 Corporate Debt Securities, the amount of such excess shall not be included in the calculation of the Borrowing Base. βBorrowing Base Reportβ means a Borrowing Base Report for the Borrower signed by an Authorized Signatory and in substantially the form of Exhibit G attached hereto. βBorrowing Dateβ means a Domestic Business Day on which Loans are advanced hereunder as specified in a Notice of Borrowing delivered pursuant to Section 2.02(a) hereof. βCalculation Dateβ has the meaning set forth in Section 5.01(c) hereof. βCharter Documentsβ means, collectively, the Borrowerβs charter, the Borrowerβs By laws and all other organizational or governing documents of the Borrower, in each case as amended, supplemented or otherwise modified from time to time. βCommitmentβ means the agreement of each Bank, subject to the terms and conditions of this Agreement, to make Loans to the Borrower hereunder. 7 |
| βCommitment Amountβ means, with respect to each Bank, the amount set forth opposite the name of such Bank on Schedule 1 attached hereto, as such amount may be changed from time to time pursuant to Sections 2.08 or 9.06(c) hereof. βCommitment Percentageβ means, with respect to each Bank, the percentage set forth opposite the name of such Bank on Schedule 1 attached hereto (as the same may be amended in accordance herewith) as such Bankβs percentage of the Aggregate Commitment Amount of all of the Banks. βConfidential Materialβ has the meaning set forth in Section 9.09(a) hereof. βConforming Changesβ means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of βBase Rate,β the definition of βDomestic Business Day,β the definition of βU.S. Government Securities Business Day,β the definition of βInterest Periodβ or any similar or analogous definition (or the addition of a concept of βinterest periodβ), 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 Section 8.05 and other technical, administrative or operational matters) that the 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 Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). βControl Affiliateβ of a Person means (a) any other Person directly or indirectly owning, controlling, or holding with power to vote, greater than 50% of the outstanding voting securities of such Person, (b) any other Person greater than 50% of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such Person, or (c) any Person directly or indirectly controlling, controlled by, or under common control with, such other Person. For purposes of this defined term, βcontrolβ means the power to exercise a controlling influence over the management or policies of a company, and βcontrollingβ and βcontrolledβ shall have correlative meanings. βCovered Personβ has the meaning set forth in Section 9.03(b) hereof. βCovered Taxesβ means any taxes, levies, imposts, duties, charges, fees, deductions or withholdings of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein other than (a) net income taxes (however denominated), franchise taxes (imposed in lieu of net income taxes), branch profits taxes and any other similar taxes imposed upon the Agent or any Bank (or its Domestic Lending Office) by the jurisdiction under the laws of which the Agent or such Bank (or its Domestic Lending Office) is organized or in which its principal office is located or through which it holds the Loans or any political subdivision, taxing authority or other authority thereof or therein, (b) any taxes imposed 8 |
| as a result of a present or former connection between the Agent or any Bank (or its Domestic Lending Office) and the jurisdiction imposing such tax other than a connection arising solely as a result of the Agent or such Bank (or its Domestic Lending Office) having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement, and (c) any U.S. Federal withholding taxes imposed under FATCA. βCredit Facilityβ means a syndicated or βclubβ credit or loan facility for the purposes of making loans. βCustodianβ means State Street. βCustody Agreementβ means that certain Custodian Agreement, dated as of October 20, 2000, among the Borrower, the various investment companies party thereto, and the Custodian, as the same may be amended, restated, supplemented or otherwise modified from time to time. βDebtβ of any Person means at any date, without duplication, (a) all obligations of such Person for borrowed money or extensions of credit, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business and payable in accordance with customary practices, (d) all obligations of such Person as lessee which are or should be capitalized in accordance with Generally Accepted Accounting Principles, (e) all obligations of others secured by a Lien on any asset of such Person, whether or not any such obligation is assumed or Guaranteed by such Person, (f) all obligations of such Person under Guarantees, (g) all obligations to reimburse the issuer in respect of letters of credit or under performance or surety bonds, and other similar obligations, (h) all obligations of such Person in respect of monetary judgments, (i) all obligations of such Person in respect of bankerβs acceptances and under reverse repurchase agreements, (j) all obligations of such Person in respect of Financial Contracts, and (k) all obligations that are Senior Securities Representing Indebtedness of such Person. βDefaultβ means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default. βDelinquent Bankβ has the meaning set forth in Section 8.08(a) hereof. βDistressed Loan Obligationβ means any Loan Obligation (a) any obligor in respect of which is subject to bankruptcy, insolvency, liquidation or other similar action or proceeding, (b) any obligor in respect of which has failed to make any payment of principal or interest in respect of such Loan Obligation (whether at scheduled maturity or any accelerated date of maturity or any other date fixed for payment thereof or otherwise) beyond any period of grace provided with respect thereto, or (c) classified by the Borrower or the Investment Adviser as βnon-performingβ pursuant to Generally Accepted Accounting Principles, or (d) rated (subject to Section 1.03) lower than Caa2 by Xxxxxβx or lower than CCC by S&P or which, if unrated, is in the reasonable judgment of the Borrower or Investment Adviser of equal credit quality to a Loan Obligation that is rated lower than Caa2 by Xxxxxβx or lower than CCC by S&P.. 9 |
| βDollarsβ or β$β means dollars in lawful currency of the United States of America. βDomestic Business Dayβ means any day (other than a Saturday or Sunday) on which (a) commercial banks are open for the purpose of transacting business in Boston, Massachusetts and New York, New York and (b) the New York Stock Exchange is open. βDomestic Lending Officeβ means, initially, the office of each Bank designated as such on Schedule 1 attached hereto; thereafter such other office of such Bank, if any, located in the United States that shall be making or maintaining any Loan. βEEA Financial Institutionβ 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. βEEA Member Countryβ means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. βEEA Resolution Authorityβ means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. βEffective Dateβ means the date this Agreement becomes effective in accordance with Section 3.01 hereof. βElectronic Platformβ means an electronic system for the delivery of information (including, without limitation, documents), such as IntraLinks On Demand Workspacesβ’, that may or may not be provided or administered by the Agent or a Control Affiliate thereof. βEligible Commercial Paperβ means a note (a) constituting an Eligible Debt Security, (b) of an Eligible Corporate Issuer, (c) having a maturity of 270 days or less, (d) rated (subject to Section 1.03) A1 or better by S&P or P1 or better by Xxxxxβx, (e) trade in and denominated in the currency of an Eligible OECD Member Nation, and (f) with respect to which there are recognized broker-dealers located in one or more Eligible OECD Member Nations that make a market in such note. βEligible Corporate Debt Securitiesβ means Eligible Debt Securities (a) issued by an Eligible Corporate Issuer, (b) traded in and denominated in the currency of an Eligible OECD Member Nation, and (c) with respect to which there are recognized broker-dealers located in one or more Eligible OECD Member Nations that make a market in such Eligible Debt Securities. βEligible Corporate Issuerβ means an issuer of debt securities domiciled in, and having its principal place of business in, an Eligible OECD Member Nation. βEligible Debt Securitiesβ means Eligible Securities that are debt securities, including, without limitation, corporate bond obligations; provided that Eligible Debt Securities shall not 10 |
| include any asset that is a direct or indirect participation or subparticipation interest in or assignment or novation of a loan or other extension of credit that is not a corporate bond obligation. βEligible Government Securitiesβ means Eligible Debt Securities (a) issued by, and backed by the full faith and credit of, the French Republic, the Federal Republic of Germany, Japan, the Netherlands, the United Kingdom, or the United States of America, and (b) issued by any GSE. βEligible Loan Obligationβ means, as of any date, a Loan Obligation (a) that is part of a Credit Facility, (b) of an Eligible Obligor, (c) traded in and denominated in the currency of an Eligible OECD Member Nation, (d) for which recognized broker-dealers located in one or more Eligible OECD Member Nations make a market, (e) with a market value of at least 70% of par, (f) that is not a Distressed Loan Obligation, and (g) the Borrower is not a βdefaulting lenderβ with respect to such Loan Obligation. βEligible Loan Participationβ means a Loan Participation (a) in an Eligible Loan Obligation, (b) issued or sold by an Eligible Loan Participation Counterparty, (c) traded in and denominated in the currency of, an Eligible OECD Member Nation, (d) for which recognized broker-dealers located in one or more Eligible OECD Member Nations make a market, and (e) that is permitted to be transferred to any commercial bank, insurance company, investment or mutual fund or other entity that is an βaccredited investorβ (as defined in Regulation D under the Securities Act) with or without the consent of such Eligible Loan Participation Counterparty. βEligible Loan Participation Counterpartyβ means a Loan Participation Counterparty (a) which is domiciled in, and has its principal place of business in, an Eligible OECD Member Nation, (b) in respect of which neither such Loan Participation Counterparty nor any controlling affiliate thereof (1) is subject to any bankruptcy or other insolvency proceeding, (2) has stated in writing that it will not perform its obligations, if any, under the relevant Loan Participation or relevant Credit Facility, or (3) is in default of any material obligation under such Loan Participation or such Credit Facility, and (c) the credit rating (subject to Section 1.03) of which (or of its controlling affiliate) is no less than βA-β from S&P or βA3β from Moody's. βEligible Obligorβ means a for profit business enterprise which is domiciled in, and has its principal place of business in, an Eligible OECD Member Nation. βEligible OECD Member Nationβ means any OECD Member Nation having a sovereign long term debt rating (subject to Section 1.03) in a non local currency of not less than βB3β by Xxxxxβx or βB-β by S&P. βEligible Securitiesβ means securities (and not Loan Obligations or Loan Participations) (a) that are publicly traded or Rule 144A Securities, (b) that are unrestricted as to sale (Rule 144A Securities that are freely traded among βqualified Institutional buyersβ (within the meaning of Rule 144A) shall not be deemed to be restricted as to sale solely as a result of the restrictions and other limitations on transfer and offers to transfer contained in the Securities Act), (c) that are free and clear of any Adverse Claim, (d) in which the Agent has, for the benefit of the Agent and the Banks, a first priority perfected security interest pursuant to the Security Documents, (e) 11 |
| that are not the subject of a reverse repurchase agreement, dollar roll, securities lending transaction or otherwise segregated to satisfy any obligations with respect thereto, (f) that are permitted to be purchased or held by the Borrower in accordance with the Prospectus and/or the Investment Policies and Restrictions, and (g) that are valued daily at current market value by independent pricing sources. βERISAβ means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute. βERISA Groupβ means, with respect to the Borrower, the Borrower and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code. βErroneous Paymentβ has the meaning set forth in Section 7.11(a) hereof. βErroneous Payment Deficiency Assignmentβ has the meaning set forth in Section 7.11(d) hereof. βErroneous Payment Impacted Classβ has the meaning set forth in Section 7.11(d) hereof. βErroneous Payment Return Deficiencyβ has the meaning set forth in Section 7.11(d) hereof. βErroneous Payment Subrogation Rightsβ has the meaning set forth in Section 7.11(d) hereof. βEU Bail-In Legislation Scheduleβ means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. βEvents of Defaultβ has the meaning set forth in Section 6.01 hereof. βExchange Actβ means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC, or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference to any successor statutory or regulatory provision. βExisting Credit Agreementβ has the meaning set forth in the Amendment. βFailureβ has the meaning set forth in Section 8.08(b) hereof. βFATCAβ means Sections 1471 through 1474 of the Internal Revenue Code, as of the Effective Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof (provided such regulations or official interpretations are substantively 12 |
| comparable and not materially more onerous to comply with) and any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code. βFed Funds Business Dayβ shall mean any day upon which overnight federal funds transactions are conducted. βFederal Funds Effective Rateβ shall mean, for any day, the rate per annum calculated by the FRBNY, based on the prior day's overnight federal funds transactions (as determined in such manner as the FRBNY shall set forth on its public website from time to time), as the federal funds effective rate (which rate is, in general, published by the FRBNY on such day for the prior FRBNY Business Day), provided that if such day is not a Fed Funds Business Day, then the Federal Funds Effective Rate shall be such rate as in effect on the Fed Funds Business Day immediately preceding such day, provided further that if the Federal Funds Effective Rate as so determined for any day would be less than the Floor, such rate for such day shall be deemed to be the Floor for all purposes of this Agreement. βFinancial Contract Liabilityβ means, at any time, the net amount of the liability, if any, that a Person has under each Financial Contract to which such Person is a party, in each case determined on a mark to market basis in accordance with Generally Accepted Accounting Principles. βFinancial Contractsβ means option contracts, options on futures contracts, futures contracts, forward contracts, options on foreign currencies, foreign currency contracts, repurchase agreements, reverse repurchase agreements, mortgage rolls, credit linked notes, indexed securities, firm and standby commitment agreements, securities lending agreements, when-issued contracts and securities, swap, swaption, floor, cap, or collar agreements, short sales, and other similar arrangements, investment techniques and other obligations that would be, but for the segregation of assets thereof, Senior Securities. βFloorβ means a rate of interest equal to 0.0%. βForeign Bankβ means any Bank that is organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. βForeign Issuerβ means any Issuer that is organized under the laws of a jurisdiction other than the United States, any State thereof, or the District of Columbia. βFRBNYβ shall mean the Federal Reserve Bank of New York, or any successor thereto that publishes the Federal Funds Effective Rate. βFRBNY Business Dayβ shall mean each business day that is not included in the FRBNYβs holiday schedule. βGenerally Accepted Accounting Principlesβ has the meaning set forth in Section 1.02 hereof. 13 |
| βGovernmental Authorizationsβ means all franchises, permits, licenses, approvals, consents and other authorizations of all Authorities. βGovernmental Filingsβ means all filings, including franchise and similar tax filings, and the payment of all fees, assessments, interests and penalties associated with such filing, with all Authorities. βGSEβ means the Government National Mortgage Association, the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation. βGuaranteeβ by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term βGuaranteeβ used as a verb has a corresponding meaning. βIndebtednessβ of any Person means at any date, without duplication, (a) all Debt of such Person, and (b) all Senior Securities issued by such Person. βInterest Periodβ means, with respect to each borrowing of SOFR Loans, initially the period commencing on the date of such borrowing and ending one month thereafter, as the Borrower may elect in the applicable Notice of Borrowing, and thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such borrowing and ending one month thereafter, as the Borrower may elect in the applicable Notice of Conversion, provided that: (a) any Interest Period which would otherwise end on a day which is not a Domestic Business Day shall be extended to the next succeeding Domestic Business Day unless such Domestic Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Domestic Business Day; (b) any Interest Period which begins on the last Domestic Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Domestic Business Day of a calendar month; and (c) any Interest Period which would otherwise end after the Termination Date shall instead end on the Termination Date. βInternal Revenue Codeβ means the Internal Revenue Code of 1986, as amended, or any successor statute and the Treasury regulations promulgated thereunder. 14 |
| βInvestment Adviserβ means Credit SuisseUBS Asset Management, (Americas) LLC, a limited liability company organized under the laws of Delaware. βInvestment Adviser Change of Controlβ means the occurrence of one or more of the following events: (a) the failure of the Investment Adviser to be a Control Affiliate of the Parent; (b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions), including by way of merger or consolidation, of all or substantially all of the assets of the Parent to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a βGroupβ), together with any Control Affiliates thereof (whether or not otherwise in compliance with the provisions hereof); (c) the approval by the holders of equity interests issued by the Parent of any plan or proposal for the liquidation or dissolution of the Parent; or (d) any Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 25% of the aggregate ordinary voting power represented by the equity interests issued by the Parent. βInvestment Company Actβ means the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC, or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to include a reference to any successor statutory or regulatory provision. βInvestment Policies and Restrictionsβ means, with respect to the Borrower, the material provisions of the Offering Document (as delivered to the Agent on the Effective Date), and other documents dealing with the Borrowerβs investment objectives, investment policies and strategies, and investment restrictions, as such objectives, policies, strategies and restrictions may be further amended, supplemented or otherwise modified in accordance with Applicable Law, including without limitation, the Securities Act and the Investment Company Act. βIssuerβ means (a) an issuer of securities or (b) an Eligible Obligor. βLawβ means any action, code, consent decree, constitution, decree, directive, enactment, finding, guideline, law, injunction, interpretation, judgment, order, ordinance, policy statement, proclamation, promulgation, regulation, requirement, rule, rule of law, rule of public policy, settlement agreement, statute, or writ, of any Authority, or any particular section, part or provision thereof. βLiabilitiesβ has the meaning set forth in Section 7.05 hereof. βLienβ means, with respect to any asset, any mortgage, lien, pledge, charge, security interest (statutory or other) or encumbrance of any kind in respect of such asset, or any preference, priority or other security or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement or any financing lease having substantially the same economic effect as any of the foregoing) with respect to such asset, including any agreement (other than this Agreement) preventing a Person from encumbering such asset. 15 |
| βLoan Documentsβ means, collectively, this Agreement, the Notes, the Security Documents, and any and all other documents and instruments required to be executed and delivered by the Borrower pursuant to this Agreement that evidence or secure the Obligations, in each case as amended, restated, supplemented or otherwise modified from time to time. βLoan Obligationβ means a debt obligation other than a security. βLoan Participationβ means a participation interest (other than a sub-participation interest) in a Loan Obligation. βLoan Participation Counterpartyβ means the seller or issuer of a Loan Participation. βLoansβ means loans made or to be made to the Borrower by the Banks pursuant to Section 2.01 hereof. βManaging Bodyβ means (a) with respect to the Borrower, the Board of Directors thereof, and (b) with respect to any other Person, the board of directors or other similar managing body thereof. βMargin Stockβ has the meaning assigned to such term in Regulation U. βMaterial Adverse Effectβ means (a) a material adverse effect on the ability of the Borrower to fully perform its obligations under this Agreement or any of the other Loan Documents, (b) a material adverse effect on the Agentβs right, title and interest, on behalf of itself and the Banks, in the collateral pledged to it pursuant to the Security Documents, or on the rights and remedies of the Agent and the Banks under this Agreement or under any of the other Loan Documents, (c) a material adverse effect on the validity or enforceability of this Agreement or any of the other Loan Documents, (d) a material adverse effect on the business, financial position, condition, operations, assets or properties of the Borrower or the Investment Adviser, or (e) a Default. βMaterial Litigationβ means, with respect to the Borrower, any action, suit, proceeding or investigation of any kind pending against, or threatened in writing against or affecting, the Borrower or any Subsidiary thereof, or any property of the Borrower or any such Subsidiary, before any court or arbitrator or any other Authority, which (a) would reasonably be expected to have a Material Adverse Effect, or (b) calls into question the validity or enforceability of, or otherwise seeks to invalidate, any Loan Document. βMaximum Amountβ means, as at any date of determination, an amount equal to the least of: (a) the maximum amount of Debt that the Borrower would be permitted to incur pursuant to Applicable Law, including the Investment Company Act, (b) the maximum amount of Debt that the Borrower would be permitted to incur pursuant to the limitations on borrowings in its Offering Document and the Investment Policies and Restrictions, 16 |
| (c) in the event that the Borrower shall have entered into any agreement(s) with any Authority limiting the amount of Debt that the Borrower may create, incur, assume or suffer to exist, the maximum amount of Debt that the Borrower would be permitted to create, incur, assume or suffer to exist pursuant to such agreement(s), and (d) the maximum amount of Debt that the Borrower would be permitted to incur without violating Section 5.19 hereof; in each case, as in effect at such date of determination. βXxxxxβxβ means Xxxxxβx Investors Services, Inc., or any successor acceptable to all of the Banks and performing substantially the same function. βMultiemployer Planβ means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five year period. βNote(s)β has the meaning set forth in Section 2.04(b) hereof. βNotice of Borrowingβ has the meaning set forth in Section 2.02(a) hereof. βNotice of Conversionβ has the meaning set forth in Section 2.02(b) hereof. βNotice of Repaymentβ has the meaning set forth in Section 2.05(g) hereof. βObligationsβ means all indebtedness, obligations and liabilities of the Borrower to the Banks and the Agent, existing on the date of this Agreement or arising thereafter, direct or indirect, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising or incurred under this Agreement or any of the other Loan Documents or in respect of any of the Loans to the Borrower or any of the Notes or other instruments at any time evidencing any thereof, and the Erroneous Payment Subrogation Rights. βOECD Member Nationβ means a member nation of the Organization for Economic Cooperation and Development. βOffering Documentβ means, with respect to the Borrower, the prospectus dated January 22, 2013, and filed with the SEC as part of the Borrowerβs registration statement on Form N-2, as amended (or any successor SEC form), and shall include, without limitation, the related statement of additional information included in such registration statement, and all amendments, restatements, supplements and other modifications thereto (whether through proxy vote or otherwise) as of the Effective Date and as the same may be further amended, restated, supplemented or otherwise modified in accordance with Applicable Law, including without limitation, the Securities Act and the Investment Company Act and in accordance with the terms of this Agreement. βOvernight Bank Funding Rateβ means, for any day, the rate per annum calculated by the FRBNY, based on the prior day's overnight federal funds transactions, eurodollar transactions, and certain reported domestic deposits (as determined in such manner as the FRBNY shall set 17 |
| forth on its public website from time to time), as the overnight bank funding rate (which rate is, in general, published by the FRBNY on such date for the prior FRBNY Business Day), provided that if such day is not a Fed Funds Business Day, then the Overnight Bank Funding Rate shall be such rate as in effect on the Fed Funds Business Day immediately preceding such day, provided further that if the Overnight Bank Funding Rate as so determined for any day would be less than the Floor, such rate for such day shall be deemed to be the Floor for all purposes of this Agreement. βParentβ means Credit SuisseUBS Group AG. βParticipantβ has the meaning set forth in Section 9.06(b) hereof. βPatriot Actβ has the meaning set forth in Section 9.10 hereof. βPayment Recipientβ has the meaning set forth in Section 7.11(a) hereof. βPermitted Restricted Paymentβ means any Restricted Payment, other than a Restricted Payment (a) which would be outside of the ordinary course of business of the Borrower or (b) which would not be consistent with the Borrowerβs past practices. βPersonβ means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a series or portfolio of any of the foregoing, or a government or political subdivision or an agency or instrumentality thereof. βPlanβ means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (b) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group. βPlan Assetsβ has the meaning set forth in Section 3(42) of ERISA. βPricing Proceduresβ means the Borrowerβs pricing procedures for its investments, as such pricing procedures may be amended, restated, supplemented or otherwise modified in accordance with Section 5.04 hereof. βPrivate Authorizationsβ means all franchises, permits, licenses, approvals, consents and other authorizations of all Persons (other than any Authority) including, without limitation, those of shareholders and creditors and those with respect to trademarks, service marks, trade names, copyrights, computer software programs, technical and other know-how. βRegisterβ has the meaning set forth in Section 9.06(g) hereof. 18 |
| βRegulation Tβ means Regulation T of the Board of Governors of the Federal Reserve System, as in effect from time to time, and all official rulings and interpretations thereunder and thereof. βRegulation Uβ means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time, and all official rulings and interpretations thereunder and thereof. βRegulation Xβ means Regulation X of the Board of Governors of the Federal Reserve System, as in effect from time to time, and all official rulings and interpretations thereunder and thereof. βRelevant Governmental Bodyβ means the Board of Governors of the Federal Reserve System or the FRBNY, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the FRBNY, or any successor thereto. βReplacement Bankβ has the meaning set forth in Section 8.06 hereof. βRepresentativesβ has the meaning set forth in Section 9.09(a) hereof. βRequired Banksβ means, at any time, Banks holding at least a majority of the aggregate unpaid principal amount of the Loans at such time or, if no Loans are then outstanding, having at least a majority of the aggregate Commitment Amounts then in effect; provided that at any time that there are two or fewer Banks, βRequired Banksβ means all of the Banks, provided further that for purposes of determining Required Banks, each Delinquent Bank (including, without limitation, its Commitment Amount and Loans) shall be disregarded for so long as such Bank remains a Delinquent Bank. βResolution Authorityβ means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. βRestricted Paymentβ means (a) any dividend or other distribution by the Borrower (whether in cash, securities or other property) with respect to any shares, units or other equity interests issued by the Borrower, and (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, by the Borrower on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares, units or other equity interests. βRevolving Credit Periodβ means the period from and including the Effective Date to the Domestic Business Day immediately preceding the Termination Date. βRule 144Aβ means Rule 144A under the Securities Act. βRule 144A Securitiesβ means securities issued in reliance on Rule 144A. 19 |
| βS&Pβ means Standard & Poorβs Financial Services LLC, a subsidiary of The McGraw Hill Companies, Inc., or any successor acceptable to all the Banks and performing substantially the same function. βSanctionsβ has the meaning set forth in Section 4.16. βSECβ means the Securities and Exchange Commission or any other governmental authority of the United States of America at the time administering the Securities Act, the Investment Company Act or the Exchange Act. βSecurities Actβ means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC, or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference to any successor statutory or regulatory provision. βSecurity Agreementβ means that certain Security Agreement, dated as of the date hereof, among the Borrower, the Custodian and the Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time. βSecurity Documentsβ means, collectively, the Security Agreement and all other instruments and documents, including, without limitation, Uniform Commercial Code financing statements, required to be executed or delivered pursuant to the Security Agreement or under Applicable Law. βSenior Loanβ means Eligible Loan Obligations and Eligible Loan Participations, in each case (a) that are free and clear of any Adverse Claim, (b) in which the agent has, for the benefit of the agent and the banks, a first priority (subject to any Lien permitted by clause (b) or clause (c) of Section 5.08) perfected security interest pursuant to the Security Documents, (c) that are not segregated, and (d) that are permitted to be purchased or held by the Borrower in accordance with the Prospectus and/or the Investment Policies and Restrictions. βSenior Securityβ has the meaning set forth in the first sentence of Section 18(g) of the Investment Company Act. βSenior Security Representing Indebtednessβ has the meaning set forth in the first sentence of Section 18(g) of the Investment Company Act. βSOFRβ means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. βSOFR Administratorβ means the FRBNY (or a successor administrator of the secured overnight financing rate). βSOFR Loanβ means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (b) of the definition of βBase Rateβ. 20 |
| βSpecified Materialsβ means, collectively, all materials or information provided by or on behalf of the Borrower, as well as documents and other written materials relating to the Borrower or any of its Subsidiaries or Affiliates or any other materials or matters relating to the Loan Documents (including, without limitation, any amendment, restatement, supplement or other modification thereto). βState Streetβ means State Street Bank and Trust Company. βSubsidiaryβ means, with respect to a Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the Managing Body thereof are at the time directly or indirectly owned by such Person. βTerm SOFRβ means, (a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the βPeriodic Term SOFR Determination Dayβ) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable 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 so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and (b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the βBase Rate Term SOFR Determination Dayβ), that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable 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 so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day;. provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. βTerm SOFR Adjustmentβ means a percentage equal to 0.10% per annum. 21 |
| βTerm SOFR Administratorβ means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion). βTerm SOFR Reference Rateβ means the forward-looking term rate based on SOFR. βTermination Dateβ means June 54, 20242025, or such earlier date on which the Commitments terminate or are terminated pursuant to the terms hereof. βThreshold Amountβ means, as of any date, the lesser of (i) 1.0% of the aggregate net asset value of the Borrower, and (ii) $2,000,000 (or the equivalent amount thereof in any other currency). βTier 1 Corporate Debt Securitiesβ means Eligible Corporate Debt Securities which are rated (subject to Section 1.03) BBB- or better by S&P or Baa3 or better by Moodyβs. βTier 1 Senior Loanβ means a Senior Loan other than a Tier 2 Senior Loan. βTier 2 Corporate Debt Securitiesβ means Eligible Corporate Debt Securities which (1) are rated (subject to Section 1.03) BB- or better by S&P or Ba3 or better by Xxxxxβx, and (2) are not Tier 1 Corporate Debt Securities. βTier 2 Senior Loanβ means a Senior Loan that constitutes (a) an Eligible Loan Obligation that is rated (subject to Section 1.03) below B- by S&P or below B3 by Xxxxxβx, or (b) an Eligible Loan Participation in respect of an Eligible Loan Obligation that is a Tier 2 Senior Loan. βTier 3 Corporate Debt Securitiesβ means Eligible Corporate Debt Securities which (1) are rated (subject to Section 1.03) B- or better by S&P or B3 or better by Xxxxxβx, and (2) are not Tier 1 Corporate Debt Securities or Tier 2 Corporate Debt Securities. βTier 4 Corporate Debt Securitiesβ means Eligible Corporate Debt Securities which (1) are rated (subject to Section 1.03) CCC- or better by S&P or Caa3 or better by Xxxxxβx, and (2) are not Tier 1 Corporate Debt Securities, Tier 2 Corporate Debt Securities or Tier 3 Corporate Debt Securities. βTotal Assetsβ means, at any date, all assets of the Borrower which in accordance with Generally Accepted Accounting Principles would be classified as assets upon a balance sheet of the Borrower prepared as of such date, valued in accordance with the Pricing Procedures, provided, however, that Total Assets shall not include (a) equipment, (b) securities owned by the Borrower which are in default (except to the extent that the Borrower is required or permitted to attribute a value thereto pursuant to the Investment Company Act, the Offering Document and the Investment Policies and Restrictions) or determined to be worthless pursuant to any policy of the Borrowerβs Managing Body, and (c) deferred organizational and offering expenses. βTotal Liabilitiesβ means, at any date, the sum of all liabilities of the Borrower which in accordance with Generally Accepted Accounting Principles would be classified as liabilities upon a balance sheet of the Borrower prepared as of such date, plus, without duplication, the 22 |
| outstanding on such date, together with all accrued and unpaid interest thereon and other amounts outstanding hereunder. (b) If at any time the aggregate principal amount of Loans outstanding exceeds the Borrowing Base, the Borrower shall within four Domestic Business Days (i) prepay such principal amount of one or more Loans (together with accrued interest thereon and, in the case of SOFR Loans, the amount, if any, payable pursuant to Section 8.05 hereof), (ii) take such other action, or (iii) both, as may be necessary so that the aggregate outstanding principal balance of the Loans no longer exceeds the Borrowing Base. (c) If at any time the Borrower shall be in default of its obligations under Sections 5.19 or 5.20 hereof, the Borrower shall within four Domestic Business Days prepay the principal of one or more Loans (together with accrued interest thereon and, in the case of SOFR Loans, the amount, if any, payable pursuant to Section 8.05 hereof) and/or take such other actions, in each such case to the extent necessary so that immediately after giving effect to such prepayment and such other actions no such default would exist. (d) If at any time the aggregate principal amount of Loans outstanding exceeds the Aggregate Commitment Amount, the Borrower shall immediately prepay such principal amount of one or more Loans (together with accrued interest thereon and, in the case of SOFR Loans, the amount, if any, payable pursuant to Section 8.05 hereof) as may be necessary to eliminate such excess. (e) The Borrower may, with notice to the Agent no later than 11:30 a.m. (Eastern time) on the Domestic Business Day of such payment in the case of Base Rate Loans and upon at least three Domestic Business Daysβ notice in the case of such payment of SOFR Loans (in either case, which notice shall not thereafter be revocable by the Borrower), prepay any Loans in whole at any time, or from time to time in part in an aggregate principal amount not less than $1,000,000 or in larger integral multiples of $100,000, by paying the principal amount to be prepaid (together with accrued interest thereon to the date of prepayment and, in the case of SOFR Loan, the amount, if any, payable pursuant to Section 8.05 hereof). (f) If the Borrower prepays all or any portion of the principal amount of any SOFR Loan on any day other than the last day of the Interest Period relating thereto, such prepayment shall include the amounts, if any, payable pursuant to Section 8.05 hereof. (g) The Borrower shall give the Agent a notice substantially in the form of Exhibit D attached hereto (a βNotice of Repaymentβ) on the date of, but prior to, each repayment or prepayment of all or any portion of any Loan, in each case specifying (1) the date of such repayment or prepayment, (2) whether such repayment or prepayment is of a Base Rate Loan or a SOFR Loan (and, if a SOFR Loan, the applicable Interest Period), (3) the aggregate principal amount of such prepayment, and (4) the other information required by such Exhibit. Upon receipt of each Notice of Repayment, the Agent shall promptly notify each Bank of the contents thereof and of such Bankβs ratable share of such prepayment. 28 |
| amount then due to such Bank. If and to the extent that the Borrower shall not have so made such payment, each Bank shall repay to the Agent forthwith on demand such amount distributed to such Bank together with interest thereon, for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Agent, at the Federal Funds Effective Rate. (c) All payments by the Borrower hereunder and under any of the other Loan Documents shall be made in Dollars without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless the Borrower is required by law (as determined in the good faith discretion of the Borrower or its agent) to make such deduction or withholding. Subject to Section 2.09(d) hereof, if any Covered Taxes are required to be withheld with respect to any amount payable by the Borrower hereunder or under any of the other Loan Documents, the Borrower will pay to the Agent, for the account of the Banks or (as the case may be) the Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Banks or the Agent to receive the same net amount which the Banks or the Agent would have received on such due date had no such Covered Taxes been required to be withheld. The Borrower will deliver promptly to the Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. If the Borrower reasonably believes that such Covered Taxes were not correctly or reasonably asserted, the Agent and the Banks, as applicable, will use reasonable efforts to cooperate (at the sole cost and expense of the Borrower) with the Borrower to obtain a refund of such taxes (which shall be repaid to the Borrower so long as such efforts would not, in the good faith determination of the Agent or any such Bank, result in any material additional costs, expenses or risks or be otherwise disadvantageous to it). Any Bank claiming any amounts payable by the Borrower pursuant to this Section 2.09(c) agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Domestic Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such amounts payable by the Borrower that may thereafter accrue and would not, in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. (d) Notwithstanding anything to the contrary contained in Section 2.09(c) hereof, the Borrower will not be required to make any additional payment to or for the account of any Bank with respect to any Covered Taxes under such Section (i) by reason of a breach by such Bank of any certification or representation set forth in any form furnished to the Borrower under Section 2.11 hereof, (ii) by reason of such Bankβs failure or inability to furnish under Section 2.11 hereof an original or an extension or renewal of any form required under Section 2.11 hereof, unless such Bank is exempt from furnishing such form pursuant to Section 2.11 hereof, or (iii) if such Covered Taxes are withholding taxes imposed on amounts payable to such Bank at the time such Bank becomes a party to this Agreement (or designates a new lending office or changes its place of organization or principal office), except to the extent that such Bankβs assignor (if any) was entitled, at the time of assignment, to receive additional amounts, from the Borrower with respect to such Covered Taxes pursuant to Section 2.09(c) hereof. 31 |
| an income tax treaty to which the United States is a party that reduces or eliminates withholding tax; (ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any successor form); (iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a βbankβ within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a β10 percent shareholderβ of the Borrower within the meaning of section 871(h)(3)(B) of the Internal Revenue Code, or (C) a βcontrolled foreign corporationβ receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code (a βU.S. Tax Compliance Certificateβ) and (y) duly completed copies of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, as applicable (or any successor form); (iv) to the extent a Foreign Bank is not the beneficial owner, two duly executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN-E, Internal Revenue Service Form W-8BEN, Internal Revenue Service Form W-9, a U.S. Tax Compliance Certificate, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank shall provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; or (v) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower and/or the Agent to determine the withholding or deduction required to be made. (c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bankβs obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.11(c), βFATCAβ shall include any amendments made to FATCA after the Effective Date and any fiscal or regulatory legislation, or any official governmental rules adopted pursuant to any intergovernmental agreement entered into in connection with FATCA. 33 |
| SECTION 6.01 Events of Default. If one or more of the following events (βEvents of Defaultβ) shall have occurred and be continuing: (a) the Borrower shall fail to pay when due (whether at maturity or any accelerated date of maturity or any other date fixed for payment or prepayment) (i) any interest on any Loan or any fee or any other amount (other than principal on the Loans) payable by the Borrower hereunder or under any of the other Loan Documents within five (5) days of the due date therefor, or (ii) any principal of any Loan; or (b) the Borrower shall fail to observe or perform any covenant or agreement to be observed or performed by the Borrower and contained in Sections 2.05(a), (b), (c) or (d), 5.04(b), 5.05, 5.07, 5.08, 5.09, 5.10, 5.13, 5.14, 5.17, 5.18, 5.21 or 5.22 hereof; or (c) the Borrower shall fail to observe or perform any covenant or agreement be observed or performed by the Borrower contained in (i) Sections 5.01(a), (b), or (d) and such failure shall continue unremedied for a period of ten (10) Domestic Business Days, (ii) Sections 5.01(c), 5.19, 5.20 and such failure shall continue unremedied for a period of four (4) Domestic Business Days, or (iii) this Agreement or any Loan Document (other than those covered by clauses (a), (b), (c)(i) or (c)(ii) of this Section) and such failure shall continue unremedied for a period of twenty (20) Domestic Business Days; or (d) any representation, warranty, certification or statement made (or deemed made) by the Borrower in this Agreement or any other Loan Document or in any certificate, financial statement or other document delivered pursuant to this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made (or deemed made); or (e) the Borrower shall fail to make any payment in respect of any Debt in an aggregate principal amount in excess of the Threshold Amount when due (after giving effect to any applicable grace period); or (f) any default or other similar event shall occur with respect to Debt of the Borrower in excess of the Threshold Amount which (i) results in the acceleration of the maturity of such Debt, (ii) enables the holder of such Debt or any Person acting on such holderβs behalf to accelerate the maturity thereof, or (iii) in the case of Debt arising under a Financial Contract, enables the other party thereto to terminate such Financial Contract; or (g) the Borrower shall seek the appointment of a trustee, receiver, liquidator, custodian or other similar official for it or any substantial part of its property, or shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or any of its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, or other similar official for it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or the Borrower shall make a general assignment for the benefit of creditors, or shall fail generally (or admit in writing its inability) to pay its debts as they become due, or shall take any action to authorize any of the foregoing; or 46 |
| (h) an involuntary case or other proceeding shall be commenced against the Borrower seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or an order for relief shall be entered against the Borrower under the federal bankruptcy laws (or any comparable Applicable Law) as now or hereafter in effect; or (i) a judgment or order for the payment of money in excess of the Threshold Amount shall be rendered against the Borrower and such judgment or order shall continue unsatisfied or unstayed for a period of thirty (30) days; or (j) the Investment Adviser shall cease to be the investment adviser to the Borrower unless the successor thereto is a Control Affiliate of the Investment Adviser; or (k) the investment adviser of the Borrower shall (i) consolidate with or merge into any other Person, unless it is the survivor or such other Person is a Control Affiliate thereof, or (ii) sell or otherwise dispose of all or substantially all of its assets; or (l) an Investment Adviser Change of Control shall occur; or (m) the suspension of registration of the Borrowerβs shares or the commencement of any proceeding for such purpose; or (n) the Agent for any reason shall cease to have a valid and perfected first priority (subject to any Lien permitted by clause (b) or clause (c) of Section 5.08) security interest in the Collateral (as defined in the Security Agreement), free and clear of all Adverse Claims; or (o) the Borrowerβs shares of common stock shall be suspended from trading on the NSE MKT LLC for more than two consecutive days upon which trading in such shares generally occurs on such exchange, or shall no longer be listed thereon; or (p) any of the Investment Policies and Restrictions that may not be changed without the approval of stockholders of the Borrower are changed; then, and in every such event, the Agent shall (i) if requested by Banks constituting Required Banks by notice to the Borrower terminate the Commitments, and they shall thereupon terminate, and (ii) if requested by Xxxxx constituting Required Banks by notice to the Borrower declare the Loans (together with accrued interest thereon) to be, and the Loans (together with accrued interest thereon and all other sums owing under the Loan Documents) shall thereupon become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; provided that in the case of any of the Events of Default specified in clause (g) or (h) of this Section with respect to the Borrower, automatically without any notice to the Borrower or any other act by the Agent or any Bank, the Commitments shall thereupon terminate and the Loans (together with accrued interest thereon and all other sums owing under the Loan Documents) shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. 47 |
| Documents or any other instrument or writing furnished in connection herewith or therewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine or to be signed by the proper party or parties. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of the Banks, the Agent may presume that such condition is satisfactory to the Banks unless the Agent shall have received notice to the contrary from a Bank within a reasonable period of time prior to the making of such Loan. SECTION 7.05 Indemnification. Each Bank shall, ratably in accordance with its Commitment Percentage (or, if the Commitments shall have expired or terminated, its Commitment Percentage as in effect immediately prior to such expiration or termination), indemnify the Agent and its Affiliates, officers, directors and employees (to the extent not reimbursed by the Borrower) for all claims, liabilities, losses, damages, costs, penalties, actions, judgments and expenses and disbursements of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel (collectively, the βLiabilitiesβ) that such Person may suffer or incur in connection with this Agreement or any of the other Loan Documents or any action taken or omitted by such Person hereunder or thereunder, provided that no Bank shall have any obligation to indemnify any such Person against any Liabilities that are determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Personβs gross negligence or willful misconduct, provided, however, that no action taken or not taken in accordance with the directions of the Required Banks shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. SECTION 7.06 Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under this Agreement. SECTION 7.07 Successor Agent. The Agent may resign at any time by giving written notice thereof to the Banks and the Borrower. Upon any resignation of the Agent, the Required Banks shall have the right to appoint a successor Agent with, if no Event of Default has occurred and is continuing, the prior written consent of the Borrower, which consent shall not be unreasonably withheld, conditioned or delayed. If no successor Agent shall have been so appointed by the Required Banks within 30 days after the retiring Agent gives notice of resignation, then the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which shall be a commercial bank organized or licensed under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $50,000,000. Upon the acceptance of its appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After any retiring Agentβs resignation hereunder as Agent, the provisions of this 49 |
| Article shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent. SECTION 7.08 Agent as Bank. In its individual capacity, State Street and any other Bank that serves as a successor Agent hereunder shall have the same obligations and the same rights, powers and privileges in respect of its Commitment and the Loans made by it as it would have were it not also the Agent. SECTION 7.09 Distribution by Agent. If in the opinion of the Agent the distribution of any amount received by it in such capacity hereunder, under the Notes or under any of the other Loan Documents might involve it in liability, it may refrain from making such distribution until its right to make such distribution shall have been adjudicated by a court of competent jurisdiction. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and to such Persons as shall be determined by such court. SECTION 7.10 Withholding Tax. To the extent required by any Applicable Law, the Agent may withhold from any interest payment to any Bank an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any authority of the United States or other jurisdiction asserts a claim that the Agent did not properly withhold tax from amounts paid to or for the account of any Bank (because the appropriate form was not delivered, was not properly executed, or because such Bank failed to notify the Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), such Bank shall indemnify the Agent (to the extent that the Agent has not already been reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) fully for all amounts paid, directly or indirectly, by the Agent as tax or otherwise, including penalties and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses. SECTION 7.11 Erroneous Payments. (a) If the Agent notifies a Bank or any Person who has received funds on behalf of a Bank (any such Bank or other recipient, a βPayment Recipientβ) that the Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 7.11(b)) that any funds received by such Payment Recipient from the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Bank or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an βErroneous Paymentβ) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Agent, and such Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Domestic Business Days thereafter, return to the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was 50 |
| made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Agent to any Payment Recipient under this Section 7.11(a) shall be conclusive, absent manifest error. (b) Without limiting Section 7.11(a), each Bank or any Person who has received funds on behalf of a Bank hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Bank or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case: (i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and (ii) such Bank shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Domestic Business Day of its knowledge of such error) notify the Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Agent pursuant to this Section 7.11(b). (c) Each Bank hereby authorizes the Agent to set off, net and apply any and all amounts at any time owing to such Bank under any Loan Document, or otherwise payable or distributable by the Agent to such Bank from any source, against any amount due to the Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent for any reason, after demand therefor by the Agent in accordance with Section 7.11(a), from any Bank that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an βErroneous Payment Return Deficiencyβ), upon the Agentβs notice to such Bank at any time, (i) such Bank shall be deemed to have assigned its Loans (but not its Commitment) of the relevant Loans (or class thereof if more than one such class) with respect to which such Erroneous Payment was made (the βErroneous Payment Impacted Classβ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the βErroneous Payment Deficiency 51 |
| Assignmentβ) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to an Electronic Platform as to which the Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Bank shall deliver any Notes evidencing such Loans to the Borrower or the Agent, (ii) the Agent as the assignee Bank shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Agent as the assignee Bank shall become a Bank hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Bank shall cease to be a Bank hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Bank and (iv) the Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Bank shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such Bank (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitment of any Bank and such Commitment shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent may be equitably subrogated, the Agent shall be contractually subrogated to all the rights and interests of the applicable Bank under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the βErroneous Payment Subrogation Rightsβ). (e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Agent from the Borrower for the purpose of making such Erroneous Payment. (f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on βdischarge for valueβ or any similar doctrine. (g) Each partyβs obligations, agreements and waivers under this Section 7.11 shall survive the resignation or replacement of the Agent, any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document. 52 |
| it or any substantial part of its property, or shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator or other similar official for it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (ii) it makes a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing, or (iii) an involuntary case or other proceeding shall be commenced against it seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it, or (iv) an order for relief shall be entered against it under the bankruptcy laws as now or hereafter in effect. ARTICLE IX MISCELLANEOUS SECTION 9.01 Notices (a) All notices, requests, consents and other communications under the Loan Documents to any party hereto (each a βNoticeβ) shall be in writing (including facsimile transmission or similar writing) and shall be given to such party at its address or facsimile number set forth on Schedule 1 attached hereto or by approved electronic communication in accordance with Section 9.01(b). Each Notice shall be deemed to have been given when received. Notices delivered through electronic communications, to the extent provided in paragraph (b) below, shall be effective as provided in paragraph (c). (b) Notices made by the Borrower consisting of requests for loans or notices of repayments hereunder or items referred to in Sections 5.01(a), (b), (c), (d) and (f) hereof may be delivered or furnished by e maile-mail or other electronic communication (including internet or intranet websites) pursuant to procedures approved by the Agent, unless the Agent, in its discretion, has previously notified the Borrower otherwise. In furtherance of the foregoing, each Bank hereby agrees to notify the Agent in writing, on or before the date such Bank becomes a party to this Agreement, of such Bankβs e mail address to which a notice may be sent (and from time to time thereafter to ensure that the Agent has on record an effective e mail address for such Bank). Each of the Agent and the Borrower may, in its discretion, agree to accept other Notices to it under the Loan Documents by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular Notices. None of the Agent, any Bank, nor any of the directors, officers, employees, agents or Affiliates of the Agent or any Bank shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed through telecommunications, electronic or other information transmission systems in connection with the Loan Documents or the transactions contemplated hereby or thereby. (c) Unless the Agent otherwise prescribes, (i) Notices sent to an e-mail address shall be deemed to have been given when received by the Agent or any Bank, as applicable, and (ii) if agreed to pursuant to paragraph (b), above, financial information posted to 58 |
| Bank will not agree to any amendment, restatement, supplement or other modification or waiver of this Agreement described in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) of Section 9.05 hereof without the consent of the Participant. The Borrower agrees that each Participant shall, to the extent provided in its participation agreement, be entitled to the benefits of Article VIII with respect to its participating interest; provided that no Participant shall be entitled to receive an amount greater than its pro rata share of any amount the selling Bank would have received hereunder had no participation been sold. An assignment or other transfer which is not permitted by clauses (c) or (d) of this Section shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 9.06(b). Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participantβs interest in the Notes or other obligations under this Agreement (the βParticipant Registerβ); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participantβs interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Person whose name is recorded in the Participant Register shall be treated as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register. (c) Subject to Section 9.06(f) hereof, any Bank may at any time assign to one or more commercial banks or other financial institutions (each an βAssigneeβ) all, or a proportionate amount of at least $5,000,000 of all, of its rights and obligations under this Agreement and the Notes, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Acceptance (each an βAssignment and Acceptanceβ) in substantially the form of Exhibit F attached hereto executed by such Assignee and such transferor Bank, with, if no Default has occurred and is continuing, the written consent of the Borrower, which consent shall not be unreasonably withheld or delayed, and of the Agent, which consent shall not be unreasonably withheld or delayed; provided that no such consent of the Borrower or the Agent shall be required if the Assignee is a Control Affiliate of the transferor Bank. Upon acceptance and recording of an Assignment and Acceptance pursuant to Section 9.06(h) hereof, from and after the effective date specified therein, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Bank under this Agreement and (B) the assigning Bank thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bankβs rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 8.01 and 9.03 hereof, as well as to any fees accrued for its account and not yet paid). Upon the consummation of any assignment pursuant to this Section 9.06(c) hereof, the transferor Bank, the Agent and the Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the Assignor and the Assignee. In connection with each such assignment, the transferor Bank shall pay to the Agent an administrative fee for processing such assignment in 62 |
| Bankβs entrance into, participation in, administration of and performance of the Loans or the Commitments or this Agreement, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Bankβs entrance into, participation in, administration of and performance of the Loans, the Commitments, and this Agreement, (iii) (A) such Bank is an investment fund managed by a βQualified Professional Asset Managerβ (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Loans, the Commitments, and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Bankβs entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Bank. (b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Bank further (x) represents and warrants, as of the date such Person became a Bank party hereto, to, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Borrower, that neither the Agent nor any of its Affiliates is a fiduciary with respect to the assets of such Bank involved in such Bankβs entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related hereto or thereto). (c) For purposes of this Section 9.17, the following defined terms when used herein have the following meanings: βBenefit Planβ means any of (a) an βemployee benefit planβ (as defined in ERISA) that is subject to Title I of ERISA, (b) a βplanβ as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for 68 |
| (iii) a βcovered FSIβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§382.2(b). βDefault Rightβ has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. βQFCβ has the meaning assigned to the term βqualified financial contractβ in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). 70 |
