AMENDMENT NO. 5 TO CREDIT AGREEMENT
Exhibit (k)(13)
EXECUTION VERSION
AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT NO. 5 (this βAmendmentβ), dated as of June 8, 2022, 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 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 and Amendment No. 4, dated as of June 9, 2021 (the βExisting Credit Agreementβ).
I. 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. 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―Schedule 1 of the Existing Credit Agreement is hereby amended and restated in its entirety in the form of Schedule 1 hereto.
4.β―β―β―β―β―β―β―β―β―β―β―β―β―Exhibit B of the Existing Credit Agreement is hereby amended and restated in its entirety in the form of Exhibit B hereto.
5.β―β―β―β―β―β―β―β―β―β―β―β―β―Exhibit C of the Existing Credit Agreement is hereby amended and restated in its entirety in the form of Exhibit C hereto.
6.β―β―β―β―β―β―β―β―β―β―β―β―β―Exhibit D of the Existing Credit Agreement is hereby amended and restated in its entirety in the form of Exhibit D hereto.
7.β―β―β―β―β―β―β―β―β―β―β―β―β―Paragraphs 1 through 6 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)β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―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)β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―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 Credit Agreement, including, without limitation, with respect to any Notice of Borrowing, (ii) attaching true, complete and correct copies of the resolutions duly adopted by the board of directors 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 9, 2021 or, if so, attaching true, complete and correct copies of each such amendment, supplement or modification;
(c)β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―the Borrower shall have paid to the Administrative Agent on the Amendment Effective Date, all accrued and unpaid interest on the LIBOR Loans;
(d)β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―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
(e)β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―the Borrower shall have paid all out-of-pocket fees and expenses incurred by the Agent (including, without limitation, reasonable legal fees and disbursements of counsel to the Agent) in connection herewith.
8.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 date of execution and delivery hereof by the Borrower (i) no Default has occurred and is continuing, and (ii) the representations and warranties of the Borrower contained in the Credit Agreement and the other Loan Documents are true on and as of the date hereof 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).
2
9.β―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.
10.β―β―β―β―β―β―β―β―β―β―β―This Amendment constitutes a Loan Document.
11.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.
12.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 Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | Chief Financial Officer and Treasurer |
Credit Suisse Asset Management Income Fund, Inc. - Amendment No. 5 to the Existing 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. 5 to the Existing Credit Agreement
SCHEDULE 1
Addresses for Notices, Domestic Lending Office, Commitment Amounts and Commitment Percentages.
BORROWER:
CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC.
Address for Notices:
Credit Suisse Asset Management Income Fund, Inc.
Xxxxxx Xxxxxxx Xxxxxx
New York, NY 10010
Attn: Chief Financial Officer
Tel: 000-000-0000
with a copy to:
Credit Suisse Asset Management Income Fund, Inc.
Xxxxxx Xxxxxxx Xxxxxx
New York, NY 10010
Attn: Secretary
Tel: 000-000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
New York, NY 10019
Attn: Xxxxxxx Xxx
Tel: 000-000-0000
Fax: 000-000-0000
E-mail: Xxxx@xxxxxxx.xxx
COMMITMENT | COMMITMENT | |||||||
BANKS: | AMOUNT | PERCENTAGE | ||||||
STATE STREET BANK AND TRUST COMPANY | $ | 85,000,000 | 100 | % |
Domestic Lending Office and Office for Notices to the Agent for Borrowings and Payments:
State Street Bank and Trust Company
State Street Financial Center
Loan Servicing Unit β SFC203
Xxx Xxxxxxx Xxxxxx
Boston, MA 02111
Attn: Xxxxxxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxx-xxxxxxx-xxx@xxxxxxxxxxx.xxx
Alternate Contact:
Attn: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxx-xxxxxxx-xxx@xxxxxxxxxxx.xxx
Office for all Other Notices:
State Street Bank and Trust Company
State Street Financial Center
Fund Finance β SFC0310
Xxx Xxxxxxx Xxxxxx
Boston, MA 02211
Attn: Xxxx X. Xxxxxxxxx, Vice President
Tel: (000) 000-0000
Email: xxxxxxxxxxx@xxxxxxxxxxx.xxx
EXHIBIT B
FORM OF
NOTICE OF BORROWING
DATE: [Insert Date] (the βNotice Dateβ)
TO: | STATE STREET BANK AND TRUST COMPANY, as Agent |
[Insert proper address(es) per the Credit Agreement]
FROM: CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC.
Reference is hereby made to that certain Credit Agreement, dated as of June 14, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ), 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. 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.
Type of Loan: | [Base Rate][Term SOFR] | |
Domestic Business Day of proposed borrowing: | [Insert Date] (the βProposed Borrowing Dateβ) | |
Amount of Loan requested hereby: | $ |
The Borrower hereby certifies as follows:
(a) | the Aggregate Commitment Amount (after giving effect to each reduction thereof that has been requested by the Borrower, if any, but which remains pending as of 2:00 p.m. (Boston, Massachusetts time) on the Notice Date (the βNotice Timeβ)) (the βApplicable Aggregate Commitment Amountβ) is | $ ; |
(b) | as of the close of business on the Domestic Business Day immediately preceding the Notice Date (the βMeasurement Timeβ), the Maximum Amount (per Annex 1 hereto) (theβApplicable Maximum Amountβ) is | $ ; |
(c) | the Pro-forma Outstanding Amount (as set defined on Annex 1 hereto) is less than the Applicable Aggregate Commitment Amount; |
(d) | the Applicable Total Debt (as defined on Annex 1 hereto) does not exceed the Applicable Maximum Amount; |
(e) | on the Proposed Borrowing Date (immediately after giving effect to all proposed Loans referred to in B and C on Annex 1 hereto), the sum of the outstanding principal balance of all Loans plus all other Debt of the Borrower will not exceed the Maximum Amount then in effect; |
(f) | each of the representations and warranties of the Borrower set out in the Loan Documents remains true and accurate as of the Notice Time and will be true and accurate on the Proposed Borrowing Date immediately after giving effect to the borrowing of the Loan(s) requested hereby; |
(g) | no Default has occurred and is continuing; and |
(h) | immediately after giving effect to the borrowing herein requested on the Proposed Borrowing Date, no Default shall exist. |
CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC. | ||
By: | ||
Name: | ||
Title: |
2
Annex 1
to
A. | The aggregate outstanding principal balance of all Loans as of the Notice Time | $ |
B. | The amount of the Loan requested hereby | $ |
C. | The amount of all Loans (without duplication of B immediately above) requested the disbursement of which is pending as of the Notice Time | $ |
D. | A + B + C (the βPro-forma Outstanding Amountβ) | $ |
E. | All other Debt | $ |
F. | Sum of D and E (βApplicable Total Debtβ) | $ |
G. | The maximum amount of Debt that the Borrower would be permitted to incur pursuant to Applicable Law (as defined in the Credit Agreement), including the Investment Company Act (as defined in the Credit Agreement) | $ |
H. | The maximum amount of Debt that the Borrower would be permitted to incur pursuant to the limitations on borrowings in its Offering Document (as defined in the Credit Agreement) and the Investment Policies and Restrictions (as defined in the Credit Agreement) | $ |
I. | In the event that the Borrower shall have entered into any agreement(s) with any Authority (as defined in the Credit Agreement) limiting the amount of Debt that the Borrower may create, incur, assume or suffer to exist,1 the maximum amount of Debt that the Borrower would be permitted to create, incur, assume or suffer to exist pursuant to such agreements | $ |
J. | The maximum amount of Debt that the Borrower would be permitted to incur without violating Section 5.19 of the Credit Agreement | $ |
K. | The least of G, H, I and J (the βApplicable Maximumβ―Amountβ)2 | $ |
1 | If there are no such agreements, enter N/A |
2 | If I is completed as βN/Aβ, ignore it for purposes of these calculations. |
EXHIBIT C
FORM OF
NOTICE OF CONVERSION
DATE:
TO: | STATE STREET BANK AND TRUST COMPANY, as Agent |
[Insert proper address(es) per the Credit Agreement]
FROM: CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC.
Reference is hereby made to that certain Credit Agreement, dated as of June 14, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ), among Credit Suisse Asset Management Income Fund, Inc., a Maryland corporation, the Banks and other lending institutions party thereto, and State Street Bank and Trust Company, as Agent. 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.
Pursuant to Section 2.02(b) of the Credit Agreement, the Borrower hereby requests the conversion or continuation of the following Loan(s) as set forth below:
Existing Loan | New Loan | |||
Type | Amount | Continue As | ||
Existing LIBOR | $_________ | /Convert to | Amount | Date* |
Term SOFR | $_________ | Term SOFR | $_________ | _________ |
Base Rate | $_________ | Base Rate | $_________ | _________ |
If Term SOFR or Existing LIBOR, last day of current Interest Period is: | ||||
The Borrower hereby certifies that no Event of Default has occurred and is continuing or would occur immediately after giving effect to the conversion or continuation of the Loan(s) herein requested.
CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC. | ||
By: | ||
Name: | ||
Title: |
EXHIBIT D
FORM OF
NOTICE OF REPAYMENT
DATE: [Insert Date] (the βNotice Dateβ)
TO: | STATE STREET BANK AND TRUST COMPANY, as Agent |
[Insert proper address(es) per the Credit Agreement]
FROM: CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC.
Reference is hereby made to that certain Credit Agreement, dated as of June 14, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ), 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. 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.
Pursuant to Section 2.05(g) of the Credit Agreement, the Borrower hereby notifies the Agent of the following Loan repayment/prepayment:
Type of Loan: | [Existing LIBOR][Base Rate][Term SOFR] | |
[If Term SOFR or Existing LIBOR: | [Interest Period]] | |
Domestic Business Day of proposed repayment/prepayment: | [Insert Date] (the βProposed Repayment Dateβ) | |
Amount of repayment/prepayment: | $________________ | |
(the βRepayment Amountβ) |
The Agent is hereby authorized and directed to debit the following DDA account on the Proposed Repayment Date in the amount of the Repayment Amount and apply the proceeds thereof repay/prepay the outstanding principal balance of such Loan: DDA Acct No.: __________________
[The balance of this Notice only needs to be completed if, after giving effect to the repayment/prepayment contemplated hereby, all or any portion of any Loan would remain outstanding]
The Borrower hereby certifies as follows:
(a) | the Aggregate Commitment Amount (after giving effect to each reduction thereof that has been requested by the Borrower, if any, but which remains pending as of 2:00 p.m. (Boston, Massachusetts time) on the Notice Date (the βNotice Timeβ)) (the βApplicable Aggregate Commitment Amountβ) is | $ ; |
(b) | as of the close of business on the Domestic Business Day immediately preceding the Notice Date (the βMeasurement Timeβ), the Maximum Amount (per Annex 1 hereto) (the βApplicable Maximum Amountβ) is | $ ; |
(c) | the Pro-forma Outstanding Amount (as defined on Annex 1 hereto) is less than the Applicable Aggregate Commitment Amount; |
(d) | the Applicable Total Debt (as defined on Annex 1 hereto) does not exceed the Applicable Maximum Amount; and |
(e) | on the Proposed Repayment Date (immediately after giving effect to the repayment/prepayment of the Payment Amount), the sum of the outstanding principal balance of all Loans plus all other Debt of the Borrower will not exceed the Maximum Amount then in effect. |
CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC. | ||
By: | ||
Name: | ||
Title: |
2
Annex 1
to
L. | The aggregate outstanding principal balance of all Loans as of the Notice Time | $ |
M. | The Repayment Amount | $ |
N. | A - B (the βPro-forma Outstanding Amountβ) | $ |
O. | All other Debt | $ |
P. | Sum of C and D (βApplicable Total Debtβ) | $ |
Q. | The maximum amount of Debt that the Borrower would be permitted to incur pursuant to Applicable Law (as defined in the Credit Agreement), including the Investment Company Act (as defined in the Credit Agreement) | $ |
R. | The maximum amount of Debt that the Borrower would be permitted to incur pursuant to the limitations on borrowings in its Prospectus (as defined in the Credit Agreement) and the Investment Policies and Restrictions (as defined in the Credit Agreement) | $ |
S. | In the event that the Borrower shall have entered into any agreement(s) with any Authority (as defined in the Credit Agreement) limiting the amount of Debt that the Borrower may create, incur, assume or suffer to exist,3 the maximum amount of Debt that the Borrower would be permitted to create, incur, assume or suffer to exist pursuant to such agreements | $ |
T. | The maximum amount of Debt that the Borrower would be permitted to incur without violating Section 5.07 or Section 5.19 of the Credit Agreement | $ |
U. | The least of F, G, H, and I (the βApplicable Maximum Amountβ)4 | $ |
3 | If there are no such agreements, enter N/A |
4 | If I is completed as βN/Aβ, ignore it for purposes of these calculations. |
ANNEX ACREDIT 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.605252047.1/MPD\1043487.000096\605252047.6 1 |
ARTICLE VI DEFAULTS 4246 SECTION 6.01 Events of Default 4246 SECTION 6.02 Remedies 4448 ARTICLE VII THE AGENT 4448 SECTION 7.01 Appointment and Authorization 4448 SECTION 7.02 Action by Agent 4448 SECTION 7.03 Consultation with Experts 4449 SECTION 7.04 Liability of Agent 4549 SECTION 7.05 Indemnification 4549 SECTION 7.06 Credit Decision 4550 SECTION 7.07 Successor Agent 4550 SECTION 7.08 Agent as Bank 4650 SECTION 7.09 Distribution by Agent 4650 SECTION 7.10 Withholding Tax 4650 SECTION 7.11 Erroneous Payments 4651 ARTICLE VIII CHANGE IN CIRCUMSTANCES 4953 SECTION 8.01 Additional Costs; Capital Adequacy. 4953 SECTION 8.02 Alternate Rate of Interest 50Benchmark Replacement Settings 55 SECTION 8.03 Illegality 5156 SECTION 8.04 Base Rate Loans Substituted for AffectedExisting LIBOR Loans 5257 SECTION 8.05 Indemnity 5257 SECTION 8.06 Replacement Banks 5257 SECTION 8.07 Change of Law 5257 SECTION 8.08 Delinquent Banks 5357 ARTICLE IX MISCELLANEOUS 5458 SECTION 9.01 Notices 5458 SECTION 9.02 No Waivers 5560 SECTION 9.03 Expenses; Documentary Taxes; Indemnification 5560 SECTION 9.04 Set Off 5661 SECTION 9.05 Amendments and Waivers 5661 SECTION 9.06 Successors and Assigns 5761 SECTION 9.07 Governing Law; Submission to Jurisdiction 5964 USA.605252047.1/MPD\1043487.000096\605252047.6 iii |
SECTION 9.08 WAIVER OF JURY TRIAL 5964 SECTION 9.09 Confidential Material 6065 SECTION 9.10 USA Patriot Act 6065 SECTION 9.11 Interest Rate Limitation 6065 SECTION 9.12 Survival 6166 SECTION 9.13 Limitation on Liability 6166 SECTION 9.14 No Fiduciary Duty 6166 SECTION 9.15 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 6166 SECTION 9.16 Miscellaneous 6267 SECTION 9.17 Certain ERISA Matters 6368 SECTION 9.18 Acknowledgement Regarding Any Supported QFCs 6469 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 OfficesOffice, 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.605252047.1/MPD\1043487.000096\605252047.6 iv |
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 meanshas the Amendment Effective Date under, and as such term is definedmeaning set forth in, the Amendment No. 4, dated as of June 9, 2021, 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 Lending Officeβ means, with respect to any Bank, (a) in the case of its Base Rate Loans, its Domestic Lending Office, and (b) in the case of its LIBOR Loans, its LIBOR Lending Office. βApplicable Marginβ means (a) prior to the Amendment 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, 0.80%. 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 USA.605252047.1/MPD 2 |
with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). 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 higherhighest of (a) the Applicable Margin plus the Federal Funds Effective Rate as in effect on that day, and (b) the Applicable Margin plus the One month LIBOR RateAdjusted Term SOFR as in effect on that day; provided that following the occurrence of a Rate Unavailability Event pertaining to the One month LIBOR Rate, the Base Rate shall be, and (c) the Applicable Margin plus the Federal Funds Effective Rate as in effect on that dayOvernight 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. USA.605252047.1/MPD 4 |
βBenchmark Replacement Dateβ means the earliest to occur of the following events with respect to the then-current Benchmark: (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 USA.605252047.1/MPD 5 |
(c) 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) 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; (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 USA.605252047.1/MPD 6 |
(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 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 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 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; (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 or LIBOR Business Day, as the case may be, 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. USA.605252047.1/MPD 7 |
βCommitmentβ means the agreement of each Bank, subject to the terms and conditions of this Agreement, to make Loans to the Borrower hereunder. 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 ApplicableDomestic Lending USA.605252047.1/MPD 8 |
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. 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 Base Rate Loansany 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. USA.605252047.1/MPD 10 |
βEligible Debt Securitiesβ means Eligible Securities that are debt securities, including, without limitation, corporate bond obligations; provided that Eligible Debt Securities shall not 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 USA.605252047.1/MPD 11 |
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) 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. βExisting LIBOR Loanβ means each LIBOR Loan outstanding immediately prior to the Amendment Effective Date. βFailureβ has the meaning set forth in Section 8.08(b) hereof. USA.605252047.1/MPD 12 |
βFall Back Rateβ means, with respect to the Reference Rate referred to in clause (b) of such defined term, the sum of each of the following (in each case giving due consideration to (x) any selection or recommendation of a replacement benchmark rate (or any adjustment thereto) or the mechanism for determining such a rate (or any adjustment thereto) by the Relevant Governmental Body, or (y) any evolving or then-prevailing market convention for determining a benchmark rate (or any adjustment thereto) as a replacement for such Reference Rate or the Underlying Benchmark (or any adjustment thereto) for U.S. law governed syndicated credit facilities having similar currencies at such time): (i) the alternate benchmark rate, if any, that has been selected by the Agent and the Borrower as the replacement for such Reference Rate, and (ii) the related adjustment, if any, to such alternate benchmark rate that has been selected by the Agent and the Borrower, provided that the Agent (x) has provided written notice thereof to the Banks and (y) has not received written notice of objection to such Fall Back Rate from Required Banks within five (5) Domestic Business Days from the date of such notice, provided further that if the Fall Back Rate as so determined for any day would be less than zero, such rate for such day shall be deemed to be zero for all purposes of this Agreement. βFall Back Rate Conforming Changesβ means, with respect to the adoption of any Fall Back Rate, any technical, administrative or operational changes (including changes to definitions contained herein, the timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Agent reasonably decides may be appropriate to reflect the adoption and implementation of such Fall Back Rate and to permit the 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 such Fall Back Rate exists, in such other manner of administration as the Agent decides in its reasonable discretion is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). 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 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 suchthe prior dayβ'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 immediately succeeding such 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 zerothe Floor, such rate for such day shall be deemed to be zerothe Floor for all purposes of this Agreement. USA.605252047.1/MPD 13 |
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. βFixed Rate Loanβ means an Existing LIBOR Loan or a SOFR Loan. 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. 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 USA.605252047.1/MPD 14 |
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, (i) with respect to each Existing LIBOR Loan, the Interest Period applicable thereto under and in accordance with the Existing Credit Agreement, and (ii), with respect to each borrowing of SOFR Loans, initially the period commencing on the date of such borrowing and ending one, three, or six months, 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 on the last day of one of the periods set forth abovemonth 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 LIBORDomestic Business Day shall be extended to the next succeeding LIBORDomestic Business Day unless such LIBORDomestic Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding LIBORDomestic Business Day; (b) any Interest Period which begins on the last LIBORDomestic 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 LIBORDomestic 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. βInvestment Adviserβ means Credit Suisse Asset Management, 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 USA.605252047.1/MPD 15 |
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. βLIBOR Business Dayβ means any Domestic Business Day on which commercial banks are open for international business (including dealings in Dollar deposits) in London. βLIBOR Lending Officeβ means, initially, the office of each Bank designated as such in Schedule 1 hereto; and thereafter such other office of such Bank, if any, that shall be making or maintaining one or more LIBOR Loans. βLIBOR Loansβ means Loans bearing interest calculated by reference to the LIBOR Offered Rate. βLIBOR Marginβ means 0.85%. βLIBOR Offered Rateβ means, with respect to any LIBOR Loan for any Interest Period, the higher of (a) 0.0%, and (b) the Screen Rate at approximately 11:00 a.m., London time, two LIBOR Business Days prior to the commencement of such Interest Period, for deposits with a maturity comparable to such Interest Period, provided that following the occurrence of a Rate Unavailability Event (as such term is defined in the Existing Credit Agreement) pertaining to such LIBOR Loan, the LIBOR Offered Rate with respect to such LIBOR Loan shall be the Fall Back Rate (as such term is defined in the Existing Credit Agreement) adopted therefor, if any. USA.605252047.1/MPD 16 |
βLIBOR Reserve Percentageβ means for any day that percentage (expressed as a decimal) which is in effect on such day, at which any lender subject thereto would be required to maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar regulations relating to such reserve requirements) against βEurocurrency Liabilitiesβ (as that term is used in Regulation D), if such liabilities were outstanding. 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. 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, USA.605252047.1/MPD 17 |
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, (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 Co operationCooperation and Development. USA.605252047.1/MPD 18 |
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. βOne-month LIBOROvernight Bank Funding Rateβ means, as offor any day, the higher of (a) 0.0%, and (b)(i) the Screen Rate at approximately 11:00 a.m., Londonrate 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 forth on its public website from time to time), for deposits with a maturity of one month, divided by (ii) 1.00 minus the LIBOR Reserve Percentage;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 in the eventif such day is not a LIBORFed Funds Business Day, then One month LIBORthe Overnight Bank Funding Rate shall be such rate as in effect on the Fed Funds Business Day immediately preceding LIBOR Business Daysuch 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 Suisse 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. USA.605252047.1/MPD 19 |
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. βRate Unavailability Eventβ means, with respect to any Reference Rate, the Agent having determined (which determination shall be conclusive absent manifest error) that: (a) adequate and reasonable means do not exist for ascertaining such Reference Rate or the applicable Underlying Benchmark, or (b) the circumstances set forth in clause (a) have not arisen but any of: (i) the supervisor (the βSupervisorβ) for the administrator (the βAdministratorβ) of such Reference Rate or the applicable Underlying Benchmark has made a public statement that such Reference Rate or the applicable Underlying Benchmark (A) is no longer representative of the underlying market, in which case a βRate Unavailability Eventβ with respect to such Reference Rate shall be deemed to have occurred as of the date of such statement, or (B) will no longer be representative of the underlying market after a specific date, in which case a βRate Unavailability Eventβ with respect to such Reference Rate shall be deemed to have occurred as of such specific date; (ii) the Supervisor has made a public statement that the Administrator (A) is insolvent (and there is no successor administrator that will continue publication of such Reference Rate or the applicable Underlying Benchmark), in which case the βRate Unavailability Eventβ with respect to such Reference Rate shall be deemed to have occurred as of the date of such statement, or (B) will be insolvent as of a specific date (and there will be no successor administrator that will continue publication of such Reference Rate or the applicable Underlying Benchmark) in which case the βRate Unavailability Eventβ with respect to such Reference Rate shall be deemed to have occurred as of such specific date; (iii) the Administrator has made a public statement identifying a specific date after which such Reference Rate or the applicable Underlying Benchmark will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of such Reference Rate or the applicable Underlying Benchmark), in which case the βRate Unavailability Eventβ with respect to such Reference Rate shall be deemed to have occurred as of such specific date; (iv) the Supervisor has made a public statement identifying a specific date after which such Reference Rate or the applicable Underlying Benchmark will permanently or indefinitely cease to be published, in which case the βRate Unavailability Eventβ with respect to such Reference Rate shall be deemed to have occurred as of such specific date; or USA.605252047.1/MPD 20 |
(v) the Supervisor or the Relevant Governmental Body has made a public statement identifying a specific date after which such Reference Rate or the applicable Underlying Benchmark may no longer be used for determining interest rates for loans, in which case the βRate Unavailability Eventβ with respect to such Reference Rate shall be deemed to have occurred as of such specific date. βReference Rateβ means (a) with respect to any existing or proposed Base Rate Loan, the One month LIBOR Rate component of the Base Rate, and (b) with respect to any existing or proposed LIBOR Loan for any Interest Period, the LIBOR Offered Rate applicable thereto. βRegisterβ has the meaning set forth in Section 9.06(g) hereof. 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. USA.605252047.1/MPD 21 |
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. 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. βScreen Rateβ means the rate appearing on the Reuters βLIBOR01β screen (or such other comparable publicly available service for displaying interest rates applicable to Dollar deposits in the London interbank market as may be selected by the Agent in its reasonable discretion) displaying interest rates for Dollar deposits in the London interbank market (or on any successor or substitute page on such screen). 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. USA.605252047.1/MPD 22 |
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. 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 USA.605252047.1/MPD 23 |
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. 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 87, 20222023, 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. USA.605252047.1/MPD 24 |
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 aggregate amount of the Borrowerβs Debt and Financial Contract Liability, provided, however, that Total Liabilities shall not include any liquidation preference of any preferred security issued by the Borrower. βTypeβ, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to Adjusted Term SOFR, the LIBOR Offered Rate or the Base Rate. βUK Financial Institutionβ means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. βUK Resolution Authorityβ means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. βUnderlying Benchmarkβ means, with respect to any existing or proposed LIBOR Loan, the LIBOR Offered RateUnadjusted Benchmark Replacementβ means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. βUnited Statesβ and βU.S.β mean the United States of America. βU.S. Government Securities Business Dayβ means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. βValuation Reportβ means a report by the Borrower, as of the close of business on a particular date, listing each security and other investment of the Borrower and the value thereof. βValueβ has the meaning assigned to such term in Section 2(a)(41) of the Investment Company Act. USA.605252047.1/MPD 25 |
Loan shall be payable in arrears (i) with respect to interest accrued during a calendar month, on the fifteenth day of the immediately succeeding calendar month, and (ii) with respect to all accrued and unpaid interest, on the Termination Date. (b) Subject to Section 2.06(cd) hereof and ARTICLE VIII hereof, each LIBOR Loan shall bear interest on the outstanding principal amount thereof, for the period commencing with the date such LIBOR Loan is made or continued through but excluding the last day of the Interest Period applicable thereto, at a rate per annum equal to the sum of the LIBOR Margin plus the applicable Adjusted LIBOR Offered Rate. Interest on each LIBOR Loan shall be payable (i) except as otherwise expressly provided in clause (ii) below, (x) on the last day of the Interest Period in effect with respect thereto, in the event such Interest Period shall exceed three months, on the last day of each three month interval during such Interest Period, and (y) with respect to all accrued and unpaid interest, on the Termination Date, or (ii) in the case of LIBOR Loans having a seven day Interest Period, (x) with respect to interest accrued during a calendar month, on the fifteenth day of the immediately succeeding calendar month and on the Termination Date, and (y) with respect to all accrued and unpaid interest on the Termination Date. (c) Subject to Section 2.06(d) hereof and ARTICLE VIII hereof, each SOFR Loan shall bear interest on the outstanding principal amount thereof, for the period commencing with the date such SOFR Loan is made or continued through but excluding the last day of the Interest Period applicable thereto, at a rate per annum equal to the sum of the Applicable Margin plus Adjusted Term SOFR. Interest on each SOFR Loan shall be payable (x) on the last day of the Interest Period in effect with respect thereto, and (y) with respect to all accrued and unpaid interest, on the Termination Date. (d) All overdue amounts payable under the Loan Documents (including, without limitation, any overdue principal of the Loans (whether at stated maturity, by acceleration or otherwise), any overdue interest on the Loans and any overdue fees) shall bear interest, payable on demand, for each day from and including the date payment thereof was due to but not including the date of actual payment, at a rate per annum equal to the sum of two percent (2%) above the Base Rate until such amount shall be paid in full (after as well as before judgment). Notwithstanding anything to the contrary in this Section 2.06, upon either (A) the occurrence of an Event of Default under Section 6.01(g) or (h) hereof, or (B) notice by the Agent to the Borrower of the occurrence of any other Event of Default, and in each case solely during the continuance of such Event of Default, the outstanding principal balance of the Loans shall bear interest at a rate per annum equal to the greater of (i) two percent (2%) above the rate of interest otherwise applicable to such Loans pursuant to this Section 2.06 or (ii) two percent (2%) above the Base Rate. (de) The Agent shall determine the interest rate applicable to the Loans hereunder and its determination thereof shall be conclusive and binding for all purposes in the absence of manifest error. USA.605252047.1/MPD 32 |
the next succeeding Domestic Business Day and interest shall accrue during such extension. If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time. (b) Unless the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Banks hereunder that the Borrower will not make such payment in full, the Agent may assume that the Borrower has made such payment in full to the Agent on such date and the Agent may (but it shall not be required to), in reliance upon such assumption, cause to be distributed to each Bank on such due date an amount equal to the 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 ApplicableDomestic 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 USA.605252047.1/MPD 34 |
deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a βBankβ under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (or any successor form) claiming eligibility for benefits of 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 USA.605252047.1/MPD 36 |
. 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 USA.605252047.1/MPD 50 |
(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 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 USA.605252047.1/MPD 56 |
assets of, deposits with or for the account of, or credit extended by, any Bank (or its ApplicableDomestic Lending Office) or shall impose on any Bank (or its ApplicableDomestic Lending Office) any other condition affecting its Loans, its Note or its Commitment; or (iii) impose on any Bank any other conditions or requirements with respect to this Agreement, the other Loan Documents, the Loans or such Bankβs Commitment; and the result of any of the foregoing is to increase the cost to such Bank (or its ApplicableDomestic Lending Office) of making, funding, issuing, renewing, extending or maintaining any Loan or such Bankβs Commitment, or to reduce the amount of any sum received or receivable by such Bank (or its ApplicableDomestic Lending Office) under this Agreement or under its Note with respect thereto, by an amount deemed by such Bank to be material, then, promptly upon demand by such Bank (and in any event within thirty (30) days after demand by such Bank) and delivery to the Borrower of the certificate required by clause (d) of this Section (with a copy to the Agent), the Borrower shall pay to such Bank the additional amount or amounts as will compensate such Bank for such increased cost or reduction. (b) If any Bank shall determine that any change after the date hereof in any existing Applicable Law, rule or regulation or any new law, rule or regulation regarding liquidity or capital adequacy, or any change therein, or any change after the date hereof in the interpretation or administration thereof by any Authority, central bank or comparable agency charged with the interpretation or administration thereof, or any new request or directive of general applicability regarding liquidity or capital adequacy (whether or not having the force of law) of any such Authority, central bank or comparable agency issued, promulgated or enacted after the date hereof, has or would have the effect of reducing the rate of return on capital of such Bank (or its parent corporation) as a consequence of such Bankβs Loans or obligations hereunder to a level below that which such Bank (or its parent corporation) could have achieved but for such law, change, request or directive (taking into consideration its policies with respect to liquidity and capital adequacy) by an amount deemed by such Bank to be material, then from time to time, promptly upon demand by such Bank (with a copy to the Agent) (and in any event within thirty (30) days after demand by such Bank) the Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank (or its parent corporation) for such reduction. (c) Failure or delay on the part of any Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Bankβs right to demand such compensation; provided that the Borrower shall not be required to compensate a Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Bank notifies the Borrower of the change giving rise to such increased costs or reductions and of such Bankβs intention to claim compensation therefor; provided further that, if the change giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (d) Each Bank will promptly notify the Borrower and the Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and, upon the written request of the Borrower, will USA.605252047.1/MPD 58 |
. If any future Applicable Law, rule, regulation, treaty or directive, or any change in any present or future Applicable Law, rule, regulation, treaty or directive, or any change in the interpretation or administration of any present or future Applicable Law, rule, regulation, treaty or directive by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its LIBOR Lending Office) with any new directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for any Bank (or its LIBOR Lending Office) to make, maintain or fund its LIBOR Loans and such Bank shall so notify the Agent, the Agent shall forthwith give notice thereof to the Banks and the Borrower, whereupon until such Bank notifies the Borrower and the Agent that the circumstances giving rise to such suspension no longer exist, (a) the commitment of such Bank to make LIBOR Loans or convert Base Rate Loans to LIBOR Loans shall forthwith be suspended, and (b) such Bankβs Loans then outstanding as LIBOR Loans, if any, shall be converted automatically to Base Rate Loans on the last day of the Interest Period applicable to such LIBOR Loans or within such earlier period as may be required by law. Before giving any notice to the Agent pursuant to this Section, such Bank shall designate a different LIBOR Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine that it may not lawfully continue to maintain and fund any of its outstanding LIBOR Loans to maturity and shall so specify in such notice, the Borrower shall immediately prepay in full the then outstanding principal amount of each such LIBOR Loan, together with accrued interest thereon and any amount payable by the Borrower pursuant to Section 8.05 hereof. Concurrently with prepaying each such LIBOR Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount from such Bank (on which interest and principal shall be payable contemporaneously with the related LIBOR Loans of the other Banks), and such Bank shall make such Base Rate Xxxx.Xxxx determines that any Law has made it unlawful, or that any Authority has asserted that it is unlawful, for any Bank or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine or charge interest based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Bank to the Borrower (through the Agent) (an βIllegality Noticeβ), (a) any obligation of the Banks to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended, and (b) the interest rate on which Base Rate Loans shall, if necessary to avoid such illegality, be determined by the Agent without reference to clause (b) of the definition of βBase Rateβ, in each case until each affected Bank notifies the Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of an Illegality Notice, the Borrower shall, if necessary to avoid such illegality, upon demand from any Bank (with a copy to the Agent), prepay or, if applicable, convert all SOFR Loans to Base Rate Loans (the interest rate on which Base Rate Loans shall, if necessary to avoid such illegality, be determined by the Agent without reference to clause (b) of the definition of βBase Rateβ), on the last day of the Interest Period therefor, if all affected Banks may lawfully continue to maintain such SOFR Loans to such day, or immediately, if any Bank may not lawfully continue to maintain such SOFR Loans to such day, in each case until the Agent is advised in writing by each affected Bank that it is no longer illegal for such Bank to determine or charge interest rates based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR. USA.605252047.1/MPD 61 |
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 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 an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such Notice is available and identifying the website address therefor, provided that, for both clauses (i) and (ii) above, if such Notice is not sent during the normal business hours of the recipient, USA.605252047.1/MPD 64 |
. Any provision of this Agreement or any of the other Loan Documents may be amended, waived, supplemented or otherwise modified if, but only if, contained in a written agreement signed by the Borrower and the Required Banks (and, if the rights or duties of the Agent are affected thereby, by the Agent); provided that no such agreement shall (i) increase the Commitment Amount of any Bank without the written consent of such Bank, (ii) reduce the principal amount of any Loan, or reduce the rate of any interest, or reduce any fees, payable under the Loan Documents, without the written consent of each Bank affected thereby thereof, (iii) postpone the Termination Date or the date of any payment for any Loan or any interest or any fees payable under the Loan Documents, or reduce the amount of, waive or excuse any such payment, or postpone the stated termination or expiration of the Aggregate Commitment Amount, without the written consent of each Bank affected thereby, (iv) change any provision hereof in a manner that would alter the pro rata sharing of payments required hereby or the pro rata reduction of Commitment Amounts required hereby, without the written consent of each Bank affected thereby, (v) change any of the provisions of this Section or the definition of the term βRequired Banksβ or any other provision hereof specifying the number or percentage of Banks required to waive, amend, supplement or otherwise modify any rights hereunder without the written consent of each Bank, (vi) change the currency in which Loans are to be made or payment under the Loan Documents is to be made, or add additional borrowers, in each case without the written consent of each Bank, or (vii) release all or substantially all of the Collateral (as defined in the Security Agreement) from the liens thereunder (except as may be expressly provided in the applicable Security Document), without the consent of each Bank, and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Agent without the prior written consent of the Agent. No delay or omission on the part of any Bank or any holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other rights of such Bank or such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of the same or any other right on any further occasion. SECTION 9.06 Successors and Assigns (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Borrower may not assign or otherwise transfer any of its rights or obligations under the Loan Documents without the prior written consent of all of the Banks (and any attempted assignment or transfer by the Borrower without such consent shall be null and void). (b) Any Bank may at any time grant to one or more commercial banks or other financial institutions (each a βParticipantβ) participating interests in its Commitment or all of its Loans. In the event of any such grant by a Bank of a participating interest to a Participant, whether or not upon notice to the Borrower and the Agent, such Bank shall remain responsible for the performance of its obligations hereunder, and the Borrower and the Agent shall continue to deal solely and directly with such Bank in connection with such Bankβs rights and obligations under this Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder, including, without limitation, the right to approve any amendment, restatement, supplement or other modification or waiver of any provision of this Agreement; provided that such participation agreement may provide that such USA.605252047.1/MPD 67 |
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 USA.605252047.1/MPD 68 |
(b) As used in this Section 9.17, the following terms have the following meanings: βBHC Act Affiliateβ of a party means an βaffiliateβ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. βCovered Entityβ means any of the following: (i) a βcovered entityβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§252.82(b); (ii) a βcovered bankβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§47.3(b); or (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). [the remainder of this page has been intentionally left blank] USA.605252047.1/MPD 76 |
USA.605252047.1/MPD 78 BORROWER: CREDIT SUISSE ASSET MANAGEMENT INCOME FUND, INC. Address for Notices: Credit Suisse Asset Management Income Fund, Inc. Xxx Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attn: Chief Financial Officer Tel: 000-000-0000 with a copy to: Credit Suisse Asset Management Income Fund, Inc. Xxx Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attn: Secretary Tel: 000-000-0000 with a copy to: Xxxxxxx Xxxx & Xxxxxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxxxx Xxx Tel: 000-000-0000 Fax: 000-000-0000 E-mail: Xxxx@xxxxxxx.xxx SCHEDULE 1 Addresses for Notices, Applicable Lending Offices, Commitment Amounts and Commitment Percentages. |
USA.605252047.1/MPD 2 COMMITMENT AMOUNT $85,000,000 COMMITMENT PERCENTAGE 100% BANKS: STATE STREET BANK AND TRUST COMPANY Domestic Lending Office, LIBOR Lending Office and Office for Notices to the Agent for Borrowings and Payments: State Street Bank and Trust Company State Street Financial Center Loan Servicing Unit β SFC203 Xxx Xxxxxxx Xxxxxx Xxxxxx, XX 00000 Attn: Xxxxxxxxxxx Xxxxxx Tel: (000) 000-0000 Fax: (000) 000-0000 Email: xxx-xxxxxxx-xxx@xxxxxxxxxxx.xxx Alternate Contact: Attn: Xxxxx Xxxxxxxx Tel: (000) 000-0000 Fax: (000) 000-0000 Email: xxx-xxxxxxx-xxx@xxxxxxxxxxx.xxx Office for all Other Notices: State Street Bank and Trust Company State Street Financial Center Fund Finance β SFC0310 Xxx Xxxxxxx Xxxxxx Xxxxxx, XX 00000 Attn: Xxxx X. Xxxxxxxxx, Vice President Tel: (000) 000-0000 Email: xxxxxxxxxxx@xxxxxxxxxxx.xxx |