SENIOR SECURED REVOLVING CREDIT AGREEMENT
64013323
Exhibit 10.1
Execution Version
AMENDMENT NO. 3 TO AMENDED AND RESTATED
XXXXXX SECURED REVOLVING CREDIT AGREEMENT
(BENCHMARK REPLACEMENT AMENDMENT)
This AMENDMENT NO. 3 (this “Amendment”) dated as of July 2, 2024, and
effective as of the Amendment No. 3 Effective Date (as defined below), by and between
BARINGS CAPITAL INVESTMENT CORPORATION, a Maryland corporation (the
“Borrower”), ING CAPITAL LLC, as administrative agent for the Lenders (as defined below)
under the Credit Agreement (in such capacity, together with its successors in such capacity, the
“Administrative Agent”), is made with respect to the Amended and Restated Senior Secured
Revolving Credit Agreement, dated as of April 30, 2021 (as amended by the Amendment No. 1
to Amended and Restated Senior Secured Revolving Credit Agreement, dated as of December
29, 2021, Amendment No. 2 to Amended and Restated Senior Secured Revolving Credit
Agreement, dated as of April 25, 2022, and as further amended, restated, amended and restated,
supplemented or otherwise modified from time to time prior to the date hereof, the “Credit
Agreement”), among the Borrower, the several banks and other financial institutions or entities
from time to time party to the Credit Agreement as lenders (the “Lenders”) and the
Administrative Agent. Unless otherwise specified, capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement (as amended hereby).
W I T N E S S E T H:
WHEREAS, pursuant to Article II of the Credit Agreement, the Borrower may
request that the Multicurrency Lenders make, and the Issuing Bank issue, in each case under the
Multicurrency Commitments, Loans and Letters of Credit denominated in Canadian Dollars
which, upon the making or issuance thereof, as applicable, incur interest, fees, commissions or
other amounts based on the Canadian Dollar Offered Rate (“CDOR”) in accordance with the
terms of the Credit Agreement;
WHEREAS, with respect to Loans and Letters of Credit denominated in Canadian
Xxxxxxx, the Administrative Agent and the Borrower have jointly elected to trigger a fallback
from CDOR pursuant to an Early Opt-In Election (as defined in the Credit Agreement, the
“XXXXX Early Opt-In Election”) in accordance with Section 2.12(d) of the Credit Agreement;
WHEREAS, the Administrative Agent and the Borrower have selected a
XXXXX-based rate as Benchmark Replacement (as defined in the Credit Agreement) for CDOR
in respect of all Available Tenors for Loans and Letters of Credit denominated in Canadian
Dollars and, pursuant to Section 2.12(d)(ii) of the Credit Agreement, such Benchmark
Replacement, together with any related Benchmark Replacement Conforming Changes (as
defined in the Credit Agreement), shall become effective at 5:00 p.m., New York City time, on
the fifth (5th) Business Day (the “XXXXX Objection Deadline”) after the day on which a draft of
this Amendment is posted to all Lenders so long as the Administrative Agent has not received,
by the XXXXX Objection Deadline, written notice of objection to the XXXXX Early Opt-In
Election from Lenders comprising the Required Lenders.
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NOW THEREFORE, in consideration of the promises and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION I AMENDMENTS TO CREDIT AGREEMENT
Effective as of the Amendment No. 3 Effective Date, and subject to the terms and
conditions set forth below, the Credit Agreement is hereby amended to delete the stricken text
(indicated textually in the same manner as the following example: stricken text or stricken text)
and to add the double-underlined text (indicated textually in the same manner as the following
example: double-underlined text or double-underline text) as set forth in the Credit Agreement
attached hereto as Exhibit A.
SECTION II MISCELLANEOUS
2.1Conditions to Effectiveness of Amendment. This Amendment shall become
effective on and as of the date (the “Amendment No. 3 Effective Date”) on which the Borrower
has satisfied each of the following conditions precedent (unless a condition shall have been
waived in accordance with Section 9.02 of the Credit Agreement):
(a)Executed Counterparts. The Administrative Agent shall have received from each
party hereto either (1) a counterpart of this Amendment signed on behalf of such party or (2)
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission or electronic mail of a signed signature page to this Amendment) that such party has
signed a counterpart of this Amendment.
(b)No Required Lender Objection. The Administrative Agent shall have not
received, by the XXXXX Objection Deadline, written notice of objection to the XXXXX Early
Opt-In Election from Lenders comprising the Required Lenders.
The contemporaneous exchange and release of executed signature pages by each of the
Persons contemplated to be a party hereto shall render this Amendment signed and dated as of
such date and any such exchange and release of such executed signature pages by all such
persons shall constitute satisfaction or waiver (as applicable) of the conditions precedent set forth
in clauses (a) and (b) above.
2.2Representations and Warranties. To induce the other parties hereto to enter into
this Amendment, the Borrower represents and warrants to the Administrative Agent and each of
the Lenders that, as of the date hereof and after giving effect to this Amendment:
(a)This Amendment has been duly authorized, executed and delivered by the
Borrower, and constitutes a legal, valid and binding obligation of the Borrower enforceable in
accordance with its terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability affecting the
enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law). The Credit
Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation
3
of the Borrower enforceable in accordance with its respective terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the
application of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(b)The execution, delivery and performance by the Borrower of this Amendment,
and the consummation of the transactions contemplated hereby, (i) are within the Borrower’s
corporate powers, (ii) do not require any consent or approval of registration or filing with, or any
other action by, any Governmental Authority, except for (x) such as have been or will be
obtained or made and are in full force and effect and (y) filings and recordings in respect of the
Xxxxx created pursuant to the Security Documents, (iii) will not violate any applicable law or
regulation or the charters, by-laws or other organizational documents of the Borrower or any
order of any Governmental Authority (including the Investment Company Act and the rules,
regulations and orders issued by the SEC thereunder), (iv) will not violate or result in a default in
any material respect under any indenture, agreement or other instrument binding upon the
Borrower or assets, or give rise to a right thereunder to require any payment to be made by the
Borrower, and (v) except for Xxxxx created pursuant to the Security Documents, will not result in
the creation or imposition of any Lien on any asset of the Borrower.
(c)The representations and warranties set forth in Article III of the Credit Agreement
(as amended by this Amendment) and the representations and warranties in each other Loan
Document are true and correct in all material respects (other than any representation or warranty
already qualified by materiality or Material Adverse Effect, which shall be true and correct in all
respects) on and as of the date hereof or as to any such representations and warranties that refer
to a specific date, as of such specific date.
(d)No Default or Event of Default has occurred or is continuing under the Credit
Agreement.
2.3Counterparts. This Amendment may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original, but
all of which when taken together shall constitute a single contract. This Amendment constitutes
the entire contract between and among the parties relating to the subject matter hereof and
supersedes any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Delivery of an executed counterpart of this Amendment by telecopy or
electronic mail shall be effective as delivery of a manually executed counterpart of this
Amendment.
2.4Payment of Expenses. The Borrower agrees to pay and reimburse, pursuant to
Section 9.03 of the Credit Agreement, the Administrative Agent for all of its reasonable and
documented out-of-pocket costs and expenses incurred in connection with this Amendment.
2.5 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
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2.6WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 2.6.
2.7Incorporation of Certain Provisions. The provisions of Sections 9.01, 9.07, 9.09
and 9.12 of the Credit Agreement are hereby incorporated by reference mutatis mutandis as if
fully set forth herein.
2.8Effect of Amendment. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights
and remedies of the Lenders, the Administrative Agent, the Collateral Agent, the Borrower or the
Subsidiary Guarantors under the Credit Agreement or any other Loan Document, and, except as
expressly set forth herein, shall not alter, modify, amend or in any way affect any of the other
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. Nothing herein shall be deemed to entitle any Person to a consent to, or a
waiver, amendment, modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan Document in
similar or different circumstances. This Amendment shall apply and be effective only with
respect to the provisions amended herein of the Credit Agreement. Upon the effectiveness of
this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of similar import shall mean and be a reference to the Credit
Agreement as amended by this Amendment and each reference in any other Loan Document
shall mean the Credit Agreement as amended hereby. This Amendment shall constitute a Loan
Document.
2.9Consent and Affirmation. Without limiting the generality of the foregoing, by its
execution hereof, the Borrower hereby to the extent applicable as of the date hereof and on the
Amendment No. 3 Effective Date (i) consents to this Amendment and the transactions
contemplated hereby, (ii) agrees that the Guarantee and Security Agreement and each of the
other Security Documents is in full force and effect, and (iii) acknowledges and affirms that such
guarantee and/or grant, as applicable, is in full force and effect in respect of, and to secure, the
Secured Obligations (as defined in the Guarantee and Security Agreement).
2.10Existing CDOR Loans. Notwithstanding contained herein, in the Credit
Agreement or in any other Loan Document, (i) all Eurocurrency Loans (as defined in the Credit
Agreement) denominated in Canadian Dollars outstanding on the Amendment No. 3 Effective
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Date immediately prior to giving effect to this Amendment (the “Existing CDOR Loans”) shall
continue to accrue interest based on CDOR and their applicable existing Interest Periods until the
last day of the Interest Period applicable to each such Existing CDOR Loans, and thereafter, all
Existing CDOR Loans shall be Eurocurrency Loans as determined in accordance with the Credit
Agreement (as amended hereby) and subject the final proviso of this Section 2.10, (ii) from and
after the Amendment No. 3 Effective Date, any request for a new Eurocurrency Loan
denominated in Canadian Dollars, or request to continue an existing Eurocurrency Loan
denominated in Canadian Dollars, shall be deemed to be a request for a new Eurocurrency Loan
bearing interest at the Adjusted Term XXXXX, and (iii) subject to any express limitations set
forth in the immediately preceding clause (i), the terms of the Credit Agreement in respect of the
administration of Eurocurrency Loans denominated in Canadian Dollars (solely with respect to
the Existing CDOR Loans) shall remain in effect from and after the date hereof until the last day
of the Interest Period applicable to each such Existing CDOR Loan, in each case, solely for
purposes of administering the Existing CDOR Loans (including, without limitation, with respect
to the payment of interest accrued thereon, determination of breakage fees and other subject
matter set forth in Article II of the Credit Agreement); provided, that prior to the end of the
Interest Period currently in effect and applicable to any Existing CDOR Loan, the Borrower shall
either (x) deliver to the Administrative Agent an Interest Election Request requesting a
conversion of such Existing CDOR Loan to a Eurocurrency Loan bearing interest at a rate equal
to the Adjusted Term XXXXX, or (y) if a notice of such conversion is not timely delivered, be
deemed to have selected a conversion of such Existing CDOR Loan into a Eurocurrency Loan
bearing interest at a rate equal to Adjusted Term XXXXX with an Interest Period of three (3)
months.
[Signature pages follow]
[Amendment No. 3 to Revolving Credit Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
BARINGS CAPITAL INVESTMENT
CORPORATION, as Borrower
By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
[Amendment No. 3 to Revolving Credit Agreement]
ING CAPITAL LLC, as Administrative Agent
By: /s/ Xxxxx Xx
Name:Xxxxx Xx
Title:Managing Director
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title:Director
EXHIBIT A
Credit Agreement
(Attached)
29135447.664013363.4
Execution Version
AMENDED AND RESTATED SENIOR SECURED
REVOLVING CREDIT AGREEMENT
dated as of
April 30, 2021,
as amended by Amendment No. 1 to Amended and Restated Senior Secured Revolving Credit
Agreement, dated as of December 29, 2021 and, by Amendment No. 2 to Amended and Restated
Senior Secured Revolving Credit Agreement, dated as of April 25, 2022 and by Amendment No.
3 to Amended and Restated Senior Secured Revolving Credit Agreement, dated as of July 2,
2024
among
as Borrower
The LENDERS Party Hereto
and
ING CAPITAL LLC
as Administrative Agent, Arranger and Sole Bookrunner
(i)
29135447.6
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
SECTION 1.01Defined Terms...................................................................................................1
SECTION 1.02Classification of Loans and Borrowings......................................................5051
SECTION 1.03Terms Generally...........................................................................................5051
SECTION 1.04Accounting Terms; GAAP...........................................................................5152
SECTION 1.05Currencies; Currency Equivalents...............................................................5152
SECTION 1.06Outstanding Indebtedness............................................................................5354
SECTION 1.07Rates; Screen Rate Notification...................................................................5354
ARTICLE II.
THE CREDITS
SECTION 2.01The Commitments............................................................................................54
SECTION 2.02Loans and Borrowings.................................................................................5455
SECTION 2.03Requests for Borrowings..............................................................................5556
SECTION 2.04Letters of Credit...........................................................................................5657
SECTION 2.05Funding of Borrowings................................................................................6162
SECTION 2.06Interest Elections..........................................................................................6162
SECTION 2.07Termination, Reduction or Increase of the Commitments...........................6364
SECTION 2.08Repayment of Loans; Evidence of Debt......................................................6667
SECTION 2.09Prepayment of Loans...................................................................................6769
SECTION 2.10Fees..............................................................................................................7273
SECTION 2.11Interest..........................................................................................................7375
SECTION 2.12Certain Borrowing Provisions......................................................................7476
SECTION 2.13Increased Costs............................................................................................7981
SECTION 2.14Break Funding Payments.............................................................................8182
SECTION 2.15Taxes............................................................................................................8183
SECTION 2.16Payments Generally; Pro Rata Treatment: Sharing of Set-offs...................8688
SECTION 2.17Defaulting Lenders.......................................................................................8890
SECTION 2.18Mitigation Obligations; Replacement of Lenders........................................9093
SECTION 2.19Maximum Rate.............................................................................................9294
(ii)
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.01Organization; Powers...................................................................................9294
SECTION 3.02Authorization; Enforceability......................................................................9294
SECTION 3.03Governmental Approvals; No Conflicts......................................................9294
SECTION 3.04Financial Condition; No Material Adverse Effect.......................................9395
SECTION 3.05Litigation......................................................................................................9395
SECTION 3.06Compliance with Laws and Agreements.....................................................9395
SECTION 3.07Taxes............................................................................................................9396
SECTION 3.08ERISA..........................................................................................................9496
SECTION 3.09Disclosure....................................................................................................9496
SECTION 3.10Investment Company Act; Margin Regulations..........................................9597
SECTION 3.11Material Agreements and Liens...................................................................9597
SECTION 3.12Subsidiaries and Investments.......................................................................9698
SECTION 3.13Properties.....................................................................................................9698
SECTION 3.14Solvency.......................................................................................................9698
SECTION 3.15No Default....................................................................................................9698
SECTION 3.16Use of Proceeds............................................................................................9699
SECTION 3.17Security Documents.....................................................................................9799
SECTION 3.18Financing Subsidiaries.................................................................................9799
SECTION 3.19Affiliate Agreements....................................................................................9799
SECTION 3.20Compliance with Sanctions..........................................................................9799
SECTION 3.21Anti-Money Laundering and Sanctions Program......................................98100
SECTION 3.22Anti-Corruption Laws................................................................................98100
SECTION 3.23Beneficial Ownership Certification...........................................................98100
SECTION 3.24Affected Financial Institutions...................................................................98100
ARTICLE IV.
CONDITIONS
SECTION 4.01Restatement Effective Date........................................................................98101
SECTION 4.02Conditions to Each Credit Event..............................................................102104
ARTICLE V.
AFFIRMATIVE COVENANTS
SECTION 5.01Financial Statements and Other Information...........................................103105
SECTION 5.02Notices of Material Events.......................................................................106108
SECTION 5.03Existence; Conduct of Business...............................................................106108
SECTION 5.04Payment of Obligations............................................................................106109
SECTION 5.05Maintenance of Properties; Insurance......................................................107109
(iii)
29135447.6
SECTION 5.06Books and Records; Inspection and Audit Rights...................................107109
SECTION 5.07Compliance with Laws and Agreements.................................................108110
SECTION 5.08Certain Obligations Respecting Subsidiaries; Further Assurances..........108110
SECTION 5.09Use of Proceeds........................................................................................111113
SECTION 5.10Status of RIC and BDC............................................................................112114
SECTION 5.11Investment Policies; Valuation Policy.....................................................112114
SECTION 5.12Portfolio Valuation and Diversification Etc............................................112114
SECTION 5.13Calculation of Borrowing Base................................................................118120
SECTION 5.14Taxes........................................................................................................127129
ARTICLE VI.
NEGATIVE COVENANTS
SECTION 6.01Indebtedness.............................................................................................127129
SECTION 6.02Liens.........................................................................................................129131
SECTION 6.03Fundamental Changes and Dispositions of Assets..................................130132
SECTION 6.04Investments..............................................................................................132134
SECTION 6.05Restricted Payments.................................................................................133134
SECTION 6.06Certain Restrictions on Subsidiaries........................................................134136
SECTION 6.07Certain Financial Covenants....................................................................134136
SECTION 6.08Transactions with Affiliates.....................................................................135137
SECTION 6.09Lines of Business.....................................................................................136137
SECTION 6.10No Further Negative Pledge.....................................................................136138
SECTION 6.11Modifications of Indebtedness and Affiliate Agreements.......................136138
SECTION 6.12Payments of Longer-Term Indebtedness.................................................137139
SECTION 6.13Modification of Investment and Valuation Policies................................137139
SECTION 6.14SBIC Guarantees......................................................................................138139
SECTION 6.15Derivative Transactions...........................................................................138139
ARTICLE VII.
EVENTS OF DEFAULT
ARTICLE VIII.
THE ADMINISTRATIVE AGENT
SECTION 8.01Appointment............................................................................................141143
SECTION 8.02Capacity as Lender...................................................................................142143
SECTION 8.03Limitation of Duties; Exculpation...........................................................142144
SECTION 8.04Reliance....................................................................................................143144
SECTION 8.05Sub-Agents...............................................................................................143145
SECTION 8.06Resignation; Successor Administrative Agent.........................................143145
SECTION 8.07Reliance by Lenders.................................................................................144145
(iv)
29135447.6
SECTION 8.08Modifications to Loan Documents...........................................................144146
SECTION 8.09Certain ERISA Matters............................................................................145146
SECTION 8.10Agents......................................................................................................146147
SECTION 8.11Collateral Matters.....................................................................................146147
SECTION 8.12Credit Bidding..........................................................................................146148
SECTION 8.13Non-Receipt of Funds by Administrative Agent; Erroneous Payments.148149
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01Notices; Electronic Communications......................................................149151
SECTION 9.02Waivers; Amendments.............................................................................153154
SECTION 9.03Expenses; Indemnity; Damage Waiver....................................................156157
SECTION 9.04Successors and Assigns............................................................................159160
SECTION 9.05Survival....................................................................................................164165
SECTION 9.06Counterparts; Integration; Effectiveness; Electronic Execution..............164165
SECTION 9.07Severability..............................................................................................165166
SECTION 9.08Right of Setoff..........................................................................................165166
SECTION 9.09Governing Law; Jurisdiction; Etc............................................................165167
SECTION 9.10WAIVER OF JURY TRIAL....................................................................166167
SECTION 9.11Judgment Currency..................................................................................166168
SECTION 9.12Headings..................................................................................................167168
SECTION 9.13Treatment of Certain Information; Confidentiality..................................167168
SECTION 9.14USA PATRIOT Act.................................................................................169170
SECTION 9.15Termination..............................................................................................169170
SECTION 9.16Acknowledgment and Consent to Bail-In of Affected Financial
Institutions................................................................................................169170
SECTION 9.17Interest Rate Limitation...........................................................................170171
SECTION 9.18Acknowledgement Regarding any Supported QFCs...............................170171
SECTION 9.19Amendment and Restatement..................................................................171172
SECTION 9.20Consent and Reaffirmation......................................................................171173
SCHEDULE 1.01(a)-Approved Dealers and Approved Pricing Services
SCHEDULE 1.01(b)-Commitments
SCHEDULE 1.01(c)- Eligibility Criteria
SCHEDULE 1.01(d)-Industry Classification Groups
SCHEDULE 3.11(a)-Material Agreements
SCHEDULE 3.11(b)-Liens
SCHEDULE 3.12(a)-Subsidiaries
SCHEDULE 3.12(b)-Investments
SCHEDULE 6.08-Certain Affiliate Transactions
SCHEDULE 9.20-Certain Updates to Guarantee and Security Agreement Annexes
(v)
29135447.6
EXHIBIT A-Form of Assignment and Assumption
EXHIBIT B-Form of Borrowing Base Certificate
EXHIBIT C-Form of Promissory Note
EXHIBIT D -Form of Borrowing Request
EXHIBIT E -Form of Interest Election Request
29135447.6
AMENDED AND RESTATED SENIOR SECURED REVOLVING CREDIT
AGREEMENT dated as of April 30, 2021 (this “Agreement”), among BARINGS CAPITAL
INVESTMENT CORPORATION, a Maryland corporation (the “Borrower”), the LENDERS
party hereto, and ING CAPITAL LLC, as Administrative Agent.
WHEREAS, the Borrower and the Administrative Agent entered into that certain
Senior Secured Revolving Credit Agreement dated as of January 15, 2021 (the “Original
Effective Date”) (as the same has been amended, supplemented or otherwise modified from time
to time until the date hereof, the “Existing Credit Agreement”) with the lenders party thereto
from time to time (the “Existing Lenders”), pursuant to which the Existing Lenders extended
certain commitments and made certain loans (the “Existing Loans”) to the Borrower;
WHEREAS, the Borrower desires to amend and restate the Existing Credit
Agreement in its entirety as set forth herein; and
WHEREAS, the Borrower has requested that the Lenders (as defined herein)
extend credit to the Borrower from time to time pursuant to the commitments as set forth herein
and the Lenders have agreed to extend such credit upon the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such
Loan is, or the Loans constituting such Borrowing are, bearing interest at a rate determined by
reference to the Alternate Base Rate.
“ABR Term SOFR Determination Day” has the meaning specified in the
definition of “Term SOFR”.
“Adjusted Borrowing Base” means the Borrowing Base minus the aggregate
amount of Cash and Cash Equivalents included in the Borrowing Base.
“Adjusted Covered Debt Balance” means, on any date, the aggregate Covered
Debt Amount on such date minus the aggregate amount of Cash and Cash Equivalents included
in the Borrowing Base (excluding any Cash held by the Administrative Agent pursuant to
Section 2.04(k)).
“Adjusted Daily Simple RFR” means, (i) with respect to any RFR Borrowing
denominated in Pounds Sterling, an interest rate per annum equal to the greater of (x) the sum of
(A) the Daily Simple RFR for Pounds Sterling, plus (B) the XXXXX Xxxxxxxxxx and (y) zero,
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29135447.6
and (ii) with respect to any RFR Borrowing denominated in Swiss Francs, an interest rate per
annum equal to the greater of (x) the sum of (A) Daily Simple RFR for Swiss Francs, plus (B)
the SARON Adjustment and (y) zero.
“Adjusted Eurocurrency Rate” means, for the Interest Period for any
Eurocurrency Borrowing denominated in (a) a Foreign Currency (other than Canadian Dollars),
an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (i) (ax) the Eurocurrency Rate for such Foreign Currency for such Interest Period
multiplied by (by) the Statutory Reserve Rate for such Interest Period and (ii) zero., and (b)
Canadian Dollars, an interest rate per annum equal to (x) the Eurocurrency Rate for Canadian
Dollars for such Interest Period plus (y) the XXXXX Adjustment for such Interest Period (the
sum of the foregoing clauses (x) and (y), “Adjusted Term XXXXX”); provided that, if Adjusted
Term XXXXX as so determined shall ever be less than the Floor, then Adjusted Term XXXXX
shall be deemed to be the Floor.
“Adjusted Term XXXXX” has the meaning specified in the definition of
“Adjusted Eurocurrency Rate”.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per
annum equal to (a) Term SOFR for such calculation plus (b) the SOFR Adjustment for such
Interest Period; provided that if Adjusted Term SOFR as so determined shall ever be less than
the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Agent” means ING, in its capacity as administrative agent for the
Xxxxxxx xxxxxxxxx, and its successors in such capacity as provided in Section 8.06.
“Administrative Agent’s Account” means, for each Currency, an account in
respect of such Currency designated by the Administrative Agent in a notice to the Borrower and
the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Advance Rate” has the meaning assigned to such term in Section 5.13.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b)
any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. Anything herein to the contrary notwithstanding, the
term “Affiliate” shall not include any Person that constitutes an Investment held by any such
Person in the ordinary course of business. For the avoidance of doubt, the term “Affiliate” shall
include the Investment Advisor.
“Affiliate Agreements” means, collectively, (a) the Investment Advisory
Agreement, dated as of June 24, 2020, between the Borrower and Barings, (b) the Administration
3
29135447.6
Agreement, dated as of June 24, 2020 between the Borrower and Barings and (c) the Sub-
Advisory Agreement, dated as of June 24, 2020, among the Borrower, Barings and Barings
International Investment Limited.
“Agency Account” has the meaning assigned to such term in Section 5.08(c)(iii).
“Agent External Value” has the meaning assigned to such term in
Section 5.12(b)(iii)(A).
“Agreed Foreign Currency” means, at any time, any of Canadian Dollars, Euros,
Pounds Sterling, AUD, New Zealand Dollars, Swiss Francs, Danish Krone, Norwegian Krone
and Swedish Krona and, with the agreement of each Multicurrency Lender and the
Administrative Agent, any other Foreign Currency, so long as, in respect of any such specified
Foreign Currency or other Foreign Currency, at such time (a) such Foreign Currency is freely
transferable and convertible into Dollars in the London foreign exchange market and (b) no
central bank or other governmental authorization in the country of issue of such Foreign
Currency (including, in the case of the Euro, any authorization by the European Central Bank) is
required to permit use of such Foreign Currency by any Multicurrency Lender for making any
Loan hereunder or to permit the Issuing Bank to issue (or to make payment under) any Letter of
Credit denominated in such Foreign Currency and/or to permit the Borrower to borrow and repay
the principal thereof and to pay the interest thereon (or to repay any LC Disbursement under a
Letter of Credit denominated in such Foreign Currency), unless such authorization has been
obtained and is in full force and effect.
“Agreement” has the meaning assigned to such term in the preamble of this
Agreement.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate for such day
plus 1/2 of 1%, (c) the Overnight Bank Funding Rate plus 1/2 of 1%, (d) Adjusted Term SOFR
for a period of one (1) month plus 1% and (e) 1%. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Federal Funds Effective Rate, Overnight Bank Funding Rate, or
Adjusted Term SOFR shall be effective from and including the effective date of such change in
the Prime Rate, the Federal Funds Effective Rate, Overnight Bank Funding Rate, or Adjusted
Term SOFR, as the case may be. If the Alternate Base Rate is being used as an alternate rate of
interest pursuant to Section 2.12(d) or the Administrative Agent is not able to determine
Adjusted Term SOFR for purposes of this definition for any reason, then the Alternate Base Rate
shall be the greatest of clauses (a), (b), (c) and (e) above and shall be determined without
reference to clause (d) above.
“Amendment No. 2 Effective Date” has the meaning assigned to such term in
Amendment No. 2 to Senior Secured Revolving Credit Agreement, dated as of April 25, 2022,
by and among the Borrower, the Subsidiary Guarantors party thereto, the Administrative Agent
and the Lenders party thereto
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction
from time to time relating to bribery or corruption.
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“Applicable Dollar Percentage” means, with respect to any Dollar Lender, the
percentage of the total Dollar Commitments represented by such Dollar Lender’s Dollar
Commitments. If the Dollar Commitments have terminated or expired, the Applicable Dollar
Percentage shall be determined based upon the Dollar Commitments most recently in effect,
giving effect to any assignments pursuant to Section 9.04(b).
“Applicable External Value” shall mean with respect to any Unquoted
Investment, the most recent Borrower External Unquoted Value determined with respect to such
Unquoted Investment; provided, however, if an Agent External Value with respect to such
Unquoted Investment is more recent than such Borrower External Unquoted Value, then the term
“Applicable External Value” shall mean the most recent Agent External Value obtained with
respect to such Unquoted Investment.
“Applicable Margin” means a per annum rate equal to (i) in the case of
Eurocurrency Loans, Term SOFR Loans or RFR Loans, 2.15% and (iii) in the case of ABR
Loans, 1.15%.
“Applicable Multicurrency Percentage” means, with respect to any Multicurrency
Lender, the percentage of the total Multicurrency Commitments represented by such
Multicurrency Lender’s Multicurrency Commitments. If the Multicurrency Commitments have
terminated or expired, the Applicable Multicurrency Percentage shall be determined based upon
the Multicurrency Commitments most recently in effect, giving effect to any assignments
pursuant to Section 9.04(b).
“Applicable Percentage” means, with respect to any Lender, the percentage of the
total Commitments represented by such Xxxxxx’s Commitments. If the Commitments have
terminated or expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments pursuant to
Section 9.04(b).
“Approved Dealer” means (a) in the case of any Eligible Portfolio Investment that
is not a U.S. Government Security, a bank or a broker-dealer registered under the Securities
Exchange Act of 1934 of nationally recognized standing or an Affiliate thereof, as set forth on
Schedule 1.01(a), (b) in the case of a U.S. Government Security, any primary dealer in U.S.
Government Securities and (c) in the case of any foreign Portfolio Investment, any foreign
broker-dealer of internationally recognized standing or an Affiliate thereof, in the case of each of
clauses (a), (b) and (c) above, as set forth on Schedule 1.01(a) or any other bank or broker-dealer
acceptable to the Administrative Agent in its reasonable determination.
“Approved Pricing Service” means (a) a pricing or quotation service as set forth
in Schedule 1.01(a) or (b) any other pricing or quotation service (i) approved by the Investment
Advisor (so long as it has the necessary delegated authority) or the Directing Body of the
Xxxxxxxx, (ii) designated in writing by the Borrower to the Administrative Agent (which
designation shall be accompanied by a copy of a resolution of the Directing Body of the
Borrower that such pricing or quotation service has been approved by the Borrower), and (iii)
acceptable to the Administrative Agent in its reasonable determination.
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“Approved Third-Party Appraiser” means any Independent nationally recognized
third-party appraisal firm (a) designated by the Borrower in writing to the Administrative Agent
(which designation shall be accompanied by a copy of a resolution of the Directing Body of the
Borrower that such firm has been approved by the Borrower for purposes of assisting the
Directing Body of the Borrower in making valuations of portfolio assets to determine the
Borrower’s compliance with the applicable provisions of the Investment Company Act) and (b)
acceptable to the Administrative Agent in its reasonable discretion; provided that, if any
proposed appraiser requests or requires a non-reliance letter, confidentiality agreement or similar
agreement prior to allowing the Administrative Agent to review any written valuation report,
such Person shall only be deemed an Approved Third-Party Appraiser if the Administrative
Agent and such Approved Third-Party Appraiser shall have entered into such a letter or
agreement. Subject to the foregoing, it is understood and agreed that, so long as the same are
Independent third-party appraisal firms approved by the Directing Body of the Borrower,
Xxxxxxx & Xxxxxx, Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc., Duff & Xxxxxx LLC, Murray,
Xxxxxx and Company, Lincoln Partners Advisors, LLC, Xxxxx Xxxxxx Xxxx, LLC and Valuation
Research Corporation are acceptable to the Administrative Agent solely to the extent they are not
serving as the Independent Valuation Provider.
“Arranger” means ING.
“Asset Sale” means a sale, lease or sub lease (as lessor or sublessor), sale and
leaseback, assignment, conveyance, transfer or other disposition to, or any exchange of property
with, any Person, in one transaction or a series of transactions, of all or any part of any Obligor’s
assets or properties of any kind, whether real, personal, or mixed and whether tangible or
intangible, whether now owned or hereafter acquired; provided, however, the term “Asset Sale”
as used in this Agreement shall not include the disposition of Portfolio Investments originated by
the Borrower and promptly transferred to a Financing Subsidiary pursuant to the terms of
Section 6.03(e) or 6.03(i) hereof.
“Assignment and Assumption” means an Assignment and Assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is required by
Section 9.04(b)), and accepted by the Administrative Agent as provided in Section 9.04 in the
form of Exhibit A or any other form reasonably approved by the Administrative Agent.
“Assuming Lender” has the meaning assigned to such term in Section 2.07(e)(i).
“AUD” and “A$” refers to the lawful currency of The Commonwealth of
Australia.
“AUD Rate” means for any Loans in AUD, (a) the AUD Screen Rate plus (b)
0.20%.
“AUD Screen Rate” means, with respect to any Interest Period, the average bid
reference rate administered by the Australian Financial Markets Association (or any other Person
that takes over the administration of such rate) for AUD bills of exchange with a tenor equal in
length to such Interest Period as displayed on page BBSY of the Reuters screen (or, in the event
such rate does not appear on such Reuters page, on any successor or substitute on such screen
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29135447.6
that displays such rate, or on the appropriate page of such other information service that
publishes such rate as shall be selected by the Administrative Agent from time to time in its
reasonable discretion) on or about 11:00 a.m. (Sydney, Australia time) on the first day of such
Interest Period. If the AUD Screen Rate shall be less than zero, the AUD Screen Rate shall be
deemed to be zero for purposes of this Agreement.
“Availability Period” means the period from and including the Restatement
Effective Date to but excluding the earlier of the Revolver Termination Date and the date of
termination of the Commitments in accordance with this Agreement.
“Available Tenor” means, as of any date of determination and with respect to the
then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any
tenor for such Benchmark that is or may be used for determining the length of an Interest Period
or (y) otherwise, any payment period for interest calculated with reference to such Benchmark,
as applicable, pursuant to this Agreement as of such date.
“Average COF Rate” has the meaning assigned to such term in Section 2.12(a).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers
by the applicable Resolution Authority in respect of any liability of an Affected Financial
Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law, regulation, rule or requirement for such EEA
Member Country from time to time which is described in the EU Bail-In Legislation Schedule
and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as
amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other
financial institutions or their affiliates (other than through liquidation, administration or other
insolvency proceedings).
“Bank Loans” has the meaning assigned to such term in Section 5.13.
“Barings” means Barings LLC, a Delaware limited liability company.
“Benchmark” means, initially, with respect to (a) Dollars, Term SOFR, (b)
Pounds Sterling and Swiss Francs, the Daily Simple RFR for the applicable Currency and (c) any
other Currency, the applicable Eurocurrency Rate; provided that if a replacement of the
Benchmark has occurred pursuant to Section 2.12(d), then “Benchmark” means the applicable
Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior
benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published
component used in the calculation thereof.
“Benchmark Replacement” means, for any Available Tenor:
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29135447.6
(1)For purposes of clause (i) of Section 2.12(d), the first alternative set forth
in the order below that can be determined by the Administrative Agent, provided that, in the case
of any Loan denominated in an Agreed Foreign Currency (other than Canadian Dollars), such
alternative shall be the alternative set forth in clause (b) below:
(a)the sum of: (i) Daily Simple SOFR and (ii) 0.10% (10 basis
points); and
(a)(i) in the case of any Loans denominated in Dollars, the sum of (x)
Daily Simple SOFR and (y) 0.10% (10 basis points), and (ii) in the case of any Loans
denominated in Canadian Dollars, the sum of (x) Daily Compounded XXXXX and (y)
0.29547% (29.547 basis points); and
(b)the sum of: (i) the alternate benchmark rate and (ii) a spread
adjustment (which may be a positive or negative value or zero), in each case, that has
been selected by the Administrative Agent and the Borrower as the replacement for such
Available Tenor of such Benchmark giving due consideration to any evolving or then-
prevailing market convention, including any applicable recommendations made by the
Relevant Governmental Body, for syndicated credit facilities denominated in Dollars at
such time; and
(2)For purposes of clause (ii) of Section 2.12(d), the sum of: (a) the alternate
benchmark rate and (b) a spread adjustment (which may be a positive or negative value or zero),
in each case, that has been selected by the Administrative Agent and the Borrower as the
replacement for such Available Tenor of such Benchmark giving due consideration to any
evolving or then-prevailing market convention, including any applicable recommendations made
by the Relevant Governmental Body, for syndicated credit facilities denominated in the
applicable Currency at such time;
provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above
would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the
purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Conforming Changes” means, with respect to any
Benchmark Replacement, Term XXXXX, Term SOFR, Daily Compounded XXXXX or Daily
Simple RFR, any technical, administrative or operational changes (including changes to the
definition of “ABR”, the definition of “Business Day”, the definition of “Interest Period,” timing
and frequency of determining rates and making payments of interest, timing of borrowing
requests or prepayment, conversion or continuation notices, the applicability and length of
lookback periods, the applicability of breakage provisions, the formula for calculating any
successor rates identified pursuant to the definition of “Daily Simple RFR” and other technical,
administrative or operational matters) that the Administrative Agent in consultation with the
Xxxxxxxx decides may be appropriate to reflect the adoption and implementation of such
Benchmark Replacement, Term XXXXX, Term SOFR, Daily Compounded XXXXX or Daily
Simple RFR and to permit the administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the Administrative Agent decides that
adoption of any portion of such market practice is not administratively feasible or if the
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Administrative Agent determines that no market practice for the administration of such
Benchmark Replacement, Term XXXXX, Term SOFR, Daily Compounded XXXXX or Daily
Simple RFR exists, in such other manner of administration as the Administrative Agent decides
is reasonably necessary in connection with the administration of this Agreement and the other
Loan Documents).
“Benchmark Transition Event” means, with respect to any then-current
Benchmark, the occurrence of a public statement or publication of information by or on behalf
of the administrator of the then-current Benchmark, the regulatory supervisor for the
administrator of such Benchmark, the Board, the NYFRB, an insolvency official with
jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction
over the administrator for such Benchmark or a court or an entity with similar insolvency or
resolution authority over the administrator for such Benchmark, announcing or stating that (a)
such administrator has ceased or will cease on a specified date to provide all Available Tenors of
such Benchmark, 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 (b) all Available Tenors of such Benchmark are or will no longer be
representative of the underlying market and economic reality that such Benchmark is intended to
measure and that representativeness will not be restored.
“Beneficial Ownership Certification” means a certification regarding a beneficial
ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in
ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or
(c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for
purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee
benefit plan” or “plan”.
“Board” means the Board of Governors of the Federal Reserve System of the
United States of America.
“Board of Directors” means, with respect to any person, (a) in the case of any
corporation, the board of directors of such person, (b) in the case of any limited liability
company, the board of managers (or the equivalent) of such person, or if there is none, the Board
of Directors of the managing member of such Person, (c) in the case of any partnership, the
Board of Directors (or the equivalent) of the general partner of such person and (d) in any other
case, the functional equivalent of the foregoing.
“Borrower” has the meaning assigned to such term in the preamble to this
Agreement.
“Borrower External Unquoted Value” has the meaning assigned to such term in
Section 5.12(b)(ii)(B)(y).
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“Borrowing” means (a) all ABR Loans of the same Class made, converted or
continued on the same date, (b) all RFR Loans of the same Class denominated in the same
Currency, (c) all Term SOFR Loans of the same Class that have the same Interest Period and/or
(d) all Eurocurrency Loans of the same Class denominated in the same Currency that have the
same Interest Period.
“Borrowing Base” has the meaning assigned to such term in Section 5.13.
“Borrowing Base Certificate” means a certificate of a Financial Officer of the
Borrower, substantially in the form of Exhibit B and appropriately completed.
“Borrowing Base Deficiency” means, at any date on which the same is
determined, the amount, if any, that the aggregate Covered Debt Amount as of such date exceeds
the Borrowing Base as of such date.
“Borrowing Request” means a request by the Borrower for a Borrowing in
accordance with Section 2.03, substantially in the form of Exhibit D hereto or such other form as
is reasonably satisfactory to the Administrative Agent.
“Business Day” means any day (a) that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to remain closed,
(b) when used in connection with a Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for general business in the Principal Financial
Center of the country for the Currency in which such Eurocurrency Loan is denominated and, if
the Borrowings or LC Disbursements which are the subject of such a borrowing, drawing,
payment, reimbursement or rate selection are denominated in Euros, the term “Business Day”
shall also exclude any day on which the TARGET2 payment system is not open for the
settlement of payment in Euros, and (c) when used in relation to RFR Loans or any interest rate
settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any other
dealings in the applicable Currency of such RFR Loan, the term “Business Day” shall also
exclude any day that is not an RFR Business Day.
“Calculation Amount” has the meaning assigned to such term in
Section 5.12(b)(iii)(B).
“Canadian Dollar” means the lawful money of Canada.
“Canadian Prime Rate” means, on any day, the rate determined by the
Administrative Agent to be the higher of (ia) the rate equal to the PRIMCAN index rate that
appears on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that
the PRIMCAN index is not published by Bloomberg, any other information service that
publishes such index from time to time, as selected by the Administrative Agent in its reasonable
discretion) and (iib) the CDOR RateAdjusted Term XXXXX for one month, plus 1% per annum.
The Canadian Prime Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Any change in the Canadian Prime Rate due to a change
in the PRIMCAN index or the CDOR RateAdjusted Term XXXXX shall be effective from and
including the effective date of such change in the PRIMCAN Index or the CDOR RateAdjusted
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29135447.6
Term XXXXX, respectively. If the Canadian Prime Rate is being used as an alternate rate of
interest pursuant to Section 2.12 or if the Administrative Agent is not able to determine Adjusted
Term XXXXX for purposes of this definition for any reason, then the Canadian Prime Rate shall
be equal to clause (a) above and shall be determined without reference to clause (b) above.
“Capital Lease Obligations” of any Person means the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying the right to
use) real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases or finance leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
“Cash” means any immediately available funds in Dollars or in any currency
other than Dollars (measured in terms of the Dollar Equivalent thereof) which is a freely
convertible currency.
“Cash Collateralize” means, with respect to a Letter of Credit, the pledge and
deposit of immediately available funds (or, if the Issuing Bank shall agree in its sole discretion,
other credit support) in the Currency of the Letter of Credit under which such LC Exposure
arises into a cash collateral account (the “Letter of Credit Collateral Account”) maintained with
(or on behalf of) the Administrative Agent in an amount equal to one hundred and two percent
(102%) of the face amount of such Letter of Credit (or such other amount as may be specified in
any applicable provision hereof) as collateral pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the Issuing Bank. “Cash Collateral” shall have a
meaning correlative to the foregoing and shall include the proceeds of such cash collateral and
other credit support.
“Cash Equivalents” means investments (other than Cash) that are one or more of
the following obligations:
(a)Short-Term U.S. Government Securities;
(b)investments in commercial paper maturing within 180 days from
the date of acquisition thereof and having, at such date of acquisition, a credit rating of at
least A-1 from S&P and at least P-1 from Moody’s;
(c)investments in certificates of deposit, banker’s acceptances and
time deposits maturing within 180 days from the date of acquisition thereof (i) issued or
guaranteed by or placed with, and money market deposit accounts issued or offered by,
any domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof or under the laws of a Permitted Foreign
Jurisdiction; provided that such certificates of deposit, banker’s acceptances and time
deposits are held in a securities account (as defined in the Uniform Commercial Code)
through which the Collateral Agent can perfect a security interest therein and (ii) having,
at such date of acquisition, a credit rating of at least A-1 from S&P and at least P-1 from
Xxxxx’x;
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29135447.6
(d)fully collateralized repurchase agreements with a term of not more
than 30 days from the date of acquisition thereof for U.S. Government Securities and
entered into with (i) a financial institution satisfying the criteria described in clause (c) of
this definition or (ii) an Approved Dealer having (or being a member of a consolidated
group having) at such date of acquisition, a credit rating of at least A-1 from S&P and at
least P-1 from Moody’s;
(e)certificates of deposit or bankers’ acceptances with a maturity of
ninety (90) days or less of any financial institution that is a member of the Federal
Reserve System having combined capital and surplus and undivided profits of not less
than $1,000,000,000; and
(f)investments in money market funds and mutual funds, which
invest substantially all of their assets in Cash or assets of the types described in clauses
(a) through (e) above;
provided, that (i) in no event shall Cash Equivalents include any obligation that
provides for the payment of interest alone (for example, interest-only securities or “IOs”); (ii) if
any of Moody’s or S&P changes its rating system, then any ratings included in this definition
shall be deemed to be an equivalent rating in a successor rating category of Xxxxx’x or S&P, as
the case may be; (iii) Cash Equivalents (other than U.S. Government Securities, certificates of
deposit or repurchase agreements) shall not include any such investment representing more than
25% of total assets of the Obligors in any single issuer; and (iv) in no event shall Cash
Equivalents include any obligation that is not denominated in Dollars or in an Agreed Foreign
Currency.
“CDOR Rate” means, on any day and for any Interest Period (other than a period
of six months’ duration), an annual rate of interest equal to the average rate applicable to
Canadian Dollar bankers’ acceptances for the applicable period that appears on the Reuters
Screen CDOR Page (or, in the event such rate does not appear on such page or screen, on any
successor or substitute page or screen that displays such rate, or on the appropriate page of such
other information service that publishes such rate from time to time, as selected by the
Administrative Agent in its reasonable discretion), rounded to the nearest 1/100th of 1%
(with .005% being rounded up), at approximately 10:15 a.m. Toronto time on such day, or if
such day is not a Business Day, then on the immediately preceding Business Day (the “CDOR
Screen Rate”); provided that if such CDOR Rate shall be less than zero, such rate shall be
deemed to be zero for purposes of this Agreement.
“CDOR Screen Rate” has the meaning assigned to such term in the definition of
the term “CDOR Rate”.
“CFC” means a Subsidiary that is a “controlled foreign corporation” directly or
indirectly owned by an Obligor within the meaning of Section 957 of the Code.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), other than the
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29135447.6
Investment Advisor or any equityholder as of the Restatement Effective Date, of shares
representing more than 35% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of the Borrower, (b) the occupation of a majority of the seats (other
than vacant seats) on the Board of Directors of the Borrower by Persons who were not (A)
members of the Board of Directors of the Borrower as of the later of (x) the Restatement
Effective Date and (y) the corresponding date of the previous year, (B) approved, selected or
nominated to become members of the Board of Directors of the Borrower by the Board of
Directors of the Borrower of which a majority consisted of individuals described in clause (A),
or (C) approved, selected or nominated to become members of the Board of Directors of the
Borrower by the Board of Directors of the Borrower of which a majority consisted of individuals
described in clause (A) and individuals described in clause (B) or (c) the acquisition of direct or
indirect Control of the Borrower by any Person or group other than the Investment Advisor.
“Change in Law” means (a) the adoption of any law, rule or regulation or treaty
after the Restatement Effective Date, (b) any change in any law, rule or regulation or treaty or in
the interpretation, implementation or application thereof by any Governmental Authority after
the Restatement Effective Date or (c) compliance by any Lender or the Issuing Bank (or, for
purposes of Section 2.13(b) or Section 2.18(a), by such Xxxxxx’s or the Issuing Bank’s holding
company, if any, or by any lending office of such Lender) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued
after the Restatement Effective Date; provided that, notwithstanding anything herein to the
contrary, (I) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives in connection therewith and (II) all requests, rules, guidelines or
directives promulgated by the Bank For International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the United States or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a
“Change in Law” regardless of the date enacted, adopted, issued, promulgated or implemented.
“CIBOR Rate” means, in the case of any Eurocurrency Borrowing denominated
in DKK, with respect to any Interest Period, a rate per annum equal to the Copenhagen Interbank
Offered Rate administered by the Finance Denmark (or any other person that takes over
administration of that rate) for deposits in DKK with a term equivalent to such Interest Period as
displayed on such screen that displays such rate, or on the appropriate page of such other
information service that publishes such rate as shall be selected by the Administrative Agent
from time to time in its reasonable discretion (the “CIBOR Screen Rate”) as of 11:00 a.m.
Copenhagen, Denmark time two Business Days prior to the commencement of such Interest
Period. If the CIBOR Rate shall be less than zero, the CIBOR Rate shall be deemed to be zero
for purposes of this agreement.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans constituting such Borrowing, are Dollar Loans or Multicurrency Loans; when
used in reference to any Lender, refers to whether such Lender is a Dollar Lender or a
Multicurrency Lender; and when used in reference to any Commitment, refers to whether such
Commitment is a Dollar Commitment or a Multicurrency Commitment.
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“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to
time.
“COF Rate” has the meaning assigned to such term in Section 2.12(a).
“Collateral” has the meaning assigned to such term in the Guarantee and Security
Agreement.
“Collateral Agent” means ING in its capacity as Collateral Agent under the
Guarantee and Security Agreement, and includes any successor Collateral Agent thereunder.
“Commitment” means, collectively, the Dollar Commitments and the
Multicurrency Commitments.
“Commitment Increase” has the meaning assigned to such term in
Section 2.07(e)(i).
“Commitment Increase Date” has the meaning assigned to such term in
Section 2.07(e)(i).
“Consolidated Asset Coverage Ratio” means, on a consolidated basis for
Borrower and its Subsidiaries, the ratio which the value of total assets, less all liabilities and
indebtedness not represented by Senior Securities, bears to the aggregate principal amount of
Senior Securities representing indebtedness of the Borrower and its Subsidiaries (including under
this Agreement) (all as determined pursuant to the Investment Company Act and any orders of
the SEC issued to the Borrower thereunder as in effect on the Restatement Effective Date). For
clarity and notwithstanding anything herein to the contrary, the calculation of the Consolidated
Asset Coverage Ratio shall be made in accordance with any exemptive order (whether in effect
on the Restatement Effective Date or thereafter) issued by the SEC under Section 6(c) of the
Investment Company Act relating to the exclusion of any Indebtedness of any SBIC Subsidiary
from the definition of Senior Securities so long as (a) such order is in effect, (b) no obligations
have become due and owing pursuant to the terms of any Permitted SBIC Guarantee and (c) such
Indebtedness is owed to the SBA.
“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.
“Control Account” has the meaning assigned to such term in Section 5.08(c)(ii).
“Control Agreement” means (i) that certain Control Agreement, dated as of
February 11, 2021, by and among the Borrower, BCIC Holdings, Inc., the Collateral Agent and
the Custodian, (ii) that certain Account Control Agreement, dated as of February 11, 2021, by
and among the Borrower, the Collateral Agent and State Street Global Markets, LLC and (iii)
such other control agreements as may be entered into by and among an Obligor, the Collateral
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Agent and a Custodian, depository bank or securities intermediary, as applicable, in form and
substance reasonably satisfactory to the Administrative Agent and the Borrower.
“XXXXX” means the Canadian Overnight Repo Rate Average administered and
published by the XXXXX Administrator.
“XXXXX Adjustment” means, for any calculation, a percentage per annum equal
to (x) 0.29547% for an Interest Period of one month and (y) 0.32138% for an Interest Period of
three months.
“XXXXX Administrator” means the Bank of Canada (or any successor
administrator of the Canadian Overnight Repo Rate Average).
“XXXXX Administrator’s Website” means the website of the Bank of Canada or
any successor source for the Canadian Overnight Repo Rate Average identified as such by the
XXXXX Administrator from time to time.
“Covenant-Lite Loan” has the meaning assigned to such term in Section 5.13.
“Covered Debt Amount” means, on any date, the sum of (x) all of the Credit
Exposures of all Lenders on such date, plus (y) the aggregate principal amount (including any
increase in the aggregate principal amount resulting from payable-in-kind interest) of Other
Covered Indebtedness outstanding on such date minus (z) LC Exposure that has been Cash
Collateralized or LC Exposure that has been backstopped in a manner reasonably satisfactory to
the Administrative Agent. For the avoidance of doubt, for purposes of calculating the Covered
Debt Amount, any convertible securities included in the Covered Debt Amount will be included
at the then outstanding principal balance thereof.
“Covered Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of the Borrower under any Loan
Document and (ii) to the extent not otherwise described in clause (i), Other Taxes.
“Credit Default Swap” means any credit default swap entered into as a means to
hedge the default risk of bonds, notes, loans, debentures or securities of the Borrower or any
Obligor.
“Credit Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Dollar Credit Exposure and Multicurrency Credit
Exposure at such time (including, for the avoidance of doubt, the Loans and LC Exposure
surviving after the Revolver Termination Date).
“Currency” means Dollars or any Foreign Currency.
“Custodian” means State Street Bank and Trust Company, or any other financial
institution mutually agreeable to the Collateral Agent and the Borrower, as custodian holding
documentation for Portfolio Investments, and accounts of the Obligors holding Portfolio
Investments, on behalf of the Obligors and, pursuant to a Control Agreement, the Collateral
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Agent. The term “Custodian” includes any agent or sub-custodian acting on behalf of the
Custodian pursuant to the terms of the Custodian Agreement.
“Custodian Account” means an account subject to a Custodian Agreement.
“Custodian Agreement” means (i) that certain Master Custodian Agreement,
dated as of August 2, 2018, by and among the Borrower, the Custodian and the other parties
thereto, (ii) that certain Custody Services Agreement, dated as of October 8, 2020, by and among
BCIC Holdings, Inc. and the Custodian and (iii) such other custodian or custody agreements as
may be entered into by and among an Obligor and a Custodian, in form and substance reasonably
satisfactory to the Administrative Agent and the Borrower.
“Daily Compounded XXXXX” means, for any day, XXXXX with interest
accruing on a compounded daily basis, with the methodology and conventions for this rate
(which will include compounding in arrears with a lookback) being established by the
Administrative Agent in accordance with the methodology and conventions for this rate selected
or recommended by the Relevant Governmental Body for determining compounded XXXXX for
business loans; provided that if the Administrative Agent decides that any such convention is not
administratively feasible for the Administrative Agent, then the Administrative Agent may (in
consultation with the Borrower) establish another convention in its reasonable discretion; and
provided that if the administrator has not provided or published CORRA and a Benchmark
Transition Event with respect to CORRA has not occurred, then, in respect of any day for which
XXXXX is required, references to XXXXX will be deemed to be references to the last provided
or published CORRA. Any change in Daily Compounded XXXXX due to a change in CORRA
shall be effective from and including the effective date of such change in CORRA without notice
to the Borrower.
“Daily Simple RFR” means, for any day (an “RFR Rate Day”), an interest rate per
annum equal to, for any RFR Loan denominated in (a) Pounds Xxxxxxxx, XXXXX for the day that
is five (5) RFR Business Days prior to (x) if such RFR Rate Day is an RFR Business Day, such
RFR Rate Day, or (y) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day
immediately preceding such RFR Rate Day, and (b) Swiss Francs, SARON for the day that is
five (5) RFR Business Days prior to (x) if such RFR Rate Day is an RFR Business Day, such
RFR Rate Day, or (y) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day
immediately preceding such RFR Rate Day. Any change in Daily Simple RFR due to a change in
the applicable RFR shall be effective from and including the effective date of such change in the
RFR without notice to the Borrower.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this
rate (which will include a lookback) being established by the Administrative Agent in
accordance with the conventions for this rate selected or recommended by the Relevant
Governmental Body for determining “Daily Simple SOFR” for syndicated business loans;
provided, that if the Administrative Agent decides that any such convention is not
administratively feasible for the Administrative Agent, then the Administrative Agent may
establish another convention in its reasonable discretion in consultation with the Borrower.
“Danish Krone” or (“DKK”) is the lawful currency of Denmark.
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“Default” means any event or condition which constitutes an Event of Default or
which upon notice, lapse of time or both would, unless cured or waived, become an Event of
Default.
“Defaulted Obligation” has the meaning assigned to such term in Section 5.13.
“Defaulting Lender” means any Lender that has, as reasonably determined by the
Administrative Agent, (a) failed to fund any portion of its Loans or participations in Letters of
Credit within two (2) Business Days of the date required to be funded by it hereunder, unless, in
the case of any Loans, such Xxxxxx notifies the Administrative Agent and the Borrower in
writing that such Xxxxxx’s failure is based on such Xxxxxx’s reasonable determination that the
conditions precedent to funding such Loan under this Agreement have not been met, such
conditions have not otherwise been waived in accordance with the terms of this Agreement and
such Xxxxxx has advised the Administrative Agent and the Borrower in writing (with reasonable
detail of those conditions that have not been satisfied) prior to the time at which such funding
was to have been made, (b) notified the Borrower, the Administrative Agent, the Issuing Bank or
any other Lender in writing that it does not intend to comply with any of its funding obligations
under this Agreement or has made a public statement that it does not intend to comply with its
funding obligations under this Agreement (unless such writing or public statement states that
such position is based on such Xxxxxx’s reasonable determination that one or more conditions
precedent to funding (which conditions precedent, together with the applicable default, if any,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) failed,
within three (3) Business Days after request by the Administrative Agent or the Borrower, to
confirm in writing to the Administrative Agent and the Borrower that it will comply with the
terms of this Agreement relating to its obligations to fund prospective Loans or participations in
then outstanding Letters of Credit (provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such written confirmation by the
Administrative Agent and the Borrower), (d) otherwise failed to pay over to the Administrative
Agent or any other Lender any other amount (other than a de minimis amount) required to be
paid by it hereunder within two (2) Business Days of the date when due, unless the subject of a
good faith dispute, or (e) other than via an Undisclosed Administration, either (i) has been
adjudicated as, or determined by any Governmental Authority having regulatory authority over
such Person or its assets to be, insolvent or has a parent company that has been adjudicated as, or
determined by any Governmental Authority having regulatory authority over such Person or its
assets to be, insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has
had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian, appointed for it, or
has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment or has a parent company that has become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or appointment or
(iii) become the subject of a Bail-In Action (unless in the case of any Lender referred to in this
clause (e), the Borrower, the Administrative Agent and the Issuing Bank shall be satisfied in the
exercise of their respective reasonable discretion that such Lender intends, and has all approvals
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required to enable it, to continue to perform its obligations as a Lender hereunder); provided that
a Lender shall not qualify as a Defaulting Lender solely as a result of the acquisition or
maintenance of an ownership interest in such Lender or its parent company, or of the exercise of
control over such Lender or any Person controlling such Lender, by a Governmental Authority or
instrumentality thereof, or solely as a result of an Undisclosed Administration, so long as such
ownership interest or Undisclosed Administration does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such
Lender.
“DIP Loan” has the meaning assigned to such term in Section 5.13.
“Directing Body” means the Borrower’s Board of Directors (or appropriate
committee thereof with the necessary delegated authority).
“Disqualified Equity Interests” means Equity Interests of the Borrower that after
issuance are subject to any agreement between the holder of such Equity Interests and the
Borrower whereby the Borrower is required to purchase, redeem, retire, acquire, cancel or
terminate such Equity Interests, other than (x) as a result of a change of control, or (y) in
connection with any purchase, redemption, retirement, acquisition, cancellation or termination
with, or in exchange for, shares of Equity Interests that are not Disqualified Equity Interests.
“Disqualified Lenders” means (i) any Person identified by name on the
“Disqualified Lender” list provided by the Borrower to the Administrative Agent on or before
the Original Effective Date as a direct competitor of the Borrower, (ii) any Person identified in
writing by name by the Borrower to the Administrative Agent as a direct competitor from time to
time after the Original Effective Date that is approved by the Administrative Agent (such
approval not to be unreasonably withheld or delayed) and (iii) any Affiliates of any such Person
identified above that are either identified in writing to the Administrative Agent by the Borrower
from time to time or readily identifiable solely based on similarity of such Affiliate’s name;
provided that no update of the list of Disqualified Lenders shall apply retroactively to disqualify
any parties that have previously acquired an assignment or participation interest in the Loan or
Commitments (or any Person that, prior to such identification, has entered into a bona fide and
binding trade for either of the foregoing and has not yet acquired such assignment or
participation) pursuant to the terms hereof; provided, further that any designation of a Person as a
Disqualified Lender shall not be effective until the third (3rd) Business Day after written notice
thereof is received by the Administrative Agent.
“Dollar Commitment” means, with respect to each Dollar Lender, the
commitment of such Dollar Lender to make Loans denominated in Dollars hereunder, expressed
as an amount representing the maximum aggregate amount of such Lenders’ Dollar Credit
Exposure permitted hereunder, as such commitment may be (a) reduced or increased from time
to time pursuant to Section 2.07 or reduced from time to time pursuant to Section 2.09 or as
otherwise provided in this Agreement and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The aggregate amount of each
Xxxxxx’s Dollar Commitment as of the Amendment No. 2 Effective Date is set forth on Schedule
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1.01(b) or in the Assignment and Assumption pursuant to which such Lender shall have assumed
its Commitment, as applicable.
“Dollar Credit Exposure” means, with respect to any Lender at any time, the sum
of the outstanding principal amount of such Xxxxxx’s Loans at such time made or incurred under
such Xxxxxx’s Dollar Commitments.
“Dollar Equivalent” means, for any amount, at the time of determination thereof,
(a) if such amount is expressed in Dollars, such amount, (b) if such amount is expressed in an
Agreed Foreign Currency, the equivalent of such amount in Dollars determined by using the rate
of exchange for the purchase of dollars with the Agreed Foreign Currency in the London foreign
exchange market at or about 11:00 a.m. London time (or New York time, as applicable) on a
particular day as displayed by ICE Data Services as the “ask price”, or as displayed on such
other information service which publishes that rate of exchange from time to time in place of
ICE Data Services (or if such service ceases to be available, the equivalent of such amount in
dollars as determined by the Administrative Agent using any method of determination it deems
reasonably appropriate in its sole discretion) and (c) if such amount is denominated in any other
currency, the equivalent of such amount in Dollars as determined by the Administrative Agent
using any method of determination it deems reasonably appropriate in its sole discretion.
“Dollar Lender” means the Persons listed on Schedule 1.01(b) as having Dollar
Commitments and any other Person that shall have become a party hereto pursuant to an
Assignment and Assumption that provides for it to assume Dollar Commitments or to acquire
Dollar Credit Exposure, other than any such Person that ceases to be a party hereto pursuant to
an Assignment and Assumption or otherwise in accordance with the terms hereof.
“Dollar Loan” means a Loan denominated in Dollars made by a Dollar Lender.
“Dollars” or “$” refers to lawful money of the United States of America.
“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election,
the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the
Xxxxxxx, so long as the Administrative Agent has not yet received, by 5:00 p.m. (New York City
time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is
provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders
comprising the Required Lenders.
“Early Opt-in Election” means, (a) in the case of a Benchmark Replacement in
respect of Term SOFR Loans denominated in Dollars, the occurrence of:
(1) (x) a determination by the Administrative Agent, (y) a notification by the
Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required
Lenders have determined or (z) a request by the Borrower to the Administrative Agent to notify
each of the other parties hereto that the Borrower has determined that at least five (5) currently
outstanding syndicated credit facilities denominated in Dollars being executed at such time (as a
result of amendment or as originally executed), or that include language similar to that contained
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in Section 2.12(d) are being executed or amended, as applicable, to incorporate or adopt a new
benchmark interest rate to replace the applicable Benchmark, and
(2)(x) the joint election by the Administrative Agent and the Borrower to
trigger a fallback from the then-current Benchmark and the provision by the Administrative
Agent of written notice of such election to the Lenders or (y) the joint election by the Required
Lenders and the Borrower to trigger a fallback from the then-current Benchmark and the
provision, if applicable, by the Required Lenders and the Borrower of written notice of such
election to the Administrative Agent; and
(b) in the case of a Benchmark Replacement in respect of Loans denominated in any
Agreed Foreign Currency, the occurrence of:
(1) (x)a determination by the Administrative Agent, (y) a notification by the
Required Multicurrency Lenders to the Administrative Agent (with a copy to the Borrower) that
the Required Multicurrency Lenders have determined or (z) a request by the Borrower to the
Administrative Agent to notify each of the other parties hereto that the Borrower has determined
that at least five (5) currently outstanding syndicated credit facilities denominated in the
applicable Agreed Foreign Currency being executed at such time (as a result of amendment or as
originally executed), or that include language similar to that contained in Section 2.12(d) are
being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate
to replace the applicable Benchmark, and
(2)(x) the joint election by the Administrative Agent and the Borrower to
trigger a fallback from the then-current Benchmark and the provision by the Administrative
Agent of written notice of such election to the Lenders or (y) the joint election by the Required
Multicurrency Lenders and the Borrower to trigger a fallback from the then-current Benchmark
and the provision, if applicable, by the Required Multicurrency Lenders and the Borrower of
written notice of such election to the Administrative Agent.
“EBITDA” has the meaning assigned to such term in Section 5.13.
“EEA Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of
an institution described in clause (a) of this definition, or (c) any financial institution established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)
of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any
Person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
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“Eligible Liens” means any right of offset, banker’s lien, security interest or other
like rights against the Portfolio Investments held by the Custodian pursuant to or in connection
with its rights and obligations relating to the Custodian Account, provided that such rights are
subordinated, pursuant to the terms of a Control Agreement, to the first priority perfected
security interest in the Collateral created in favor of the Collateral Agent, except to the extent
expressly provided therein.
“Eligible Portfolio Investment” means any Portfolio Investment held by any
Obligor (and solely for purposes of determining the Borrowing Base, Cash (other than Cash
Collateral) and Cash Equivalents held by any Obligor) that, in each case, meets all of the criteria
set forth on Schedule 1.01(c) hereto; provided, that no Portfolio Investment, Cash or Cash
Equivalent shall constitute an Eligible Portfolio Investment or be included in the Borrowing Base
if the Collateral Agent does not at all times maintain a first priority, perfected Lien (subject to no
other Liens other than Eligible Liens) on such Portfolio Investment, Cash or Cash Equivalent or
if such Portfolio Investment, Cash or Cash Equivalent has not been or does not at all times
continue to be Delivered (as defined in the Guarantee and Security Agreement). Without
limiting the generality of the foregoing, it is understood and agreed that any Portfolio
Investments that have been contributed or sold, purported to be contributed or sold or otherwise
transferred to any Financing Subsidiary, Immaterial Subsidiary, CFC, Transparent Subsidiary or
any other Person that is not a Subsidiary Guarantor, or held by any Financing Subsidiary,
Immaterial Subsidiary, CFC, Transparent Subsidiary or any other Person that is not a Subsidiary
Guarantor shall not be treated as Eligible Portfolio Investments until distributed, sold or
otherwise transferred to any Obligor free and clear of all Liens (other than Eligible Liens).
Notwithstanding the foregoing, nothing herein shall limit the provisions of Section 5.12(b)(i),
which provide that, for purposes of this Agreement, all determinations of whether an Investment
is to be included as an Eligible Portfolio Investment shall be determined on a Settlement-Date
Basis, provided that no such Investment shall be included as an Eligible Portfolio Investment to
the extent it has not been paid for in full.
“Equity Interests” means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights entitling the holder
thereof to purchase or acquire any such equity interest. As used in this Agreement, “Equity
Interests” shall not include convertible debt unless and until such debt has been converted to
capital stock.
“ERISA” means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414(m) or (o) of the Code.
“ERISA Event” means (a) any “reportable event,” as defined in Section 4043 of
ERISA, with respect to a Plan (other than an event for which the 30-day notice period is waived);
(b) with respect to any Plan, the failure to satisfy the minimum funding standards set forth in
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Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) the filing pursuant
to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination
of any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (e) the
receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan
under Section 4041(c) or Section 4042 of ERISA; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of Withdrawal Liability; (g) the occurrence of any non-exempt prohibited
transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with
respect to any Plan which would result in liability to a Lender; (h) the failure to make any
required contribution to a Multiemployer Plan or to any Plan that would result in the imposition
of a lien or other encumbrance or the provision of security under Section 412 or 430 of the Code
or Section 302, 303 or 4068 of ERISA; or (i) the receipt by the Borrower or any ERISA Affiliate
of any notice concerning a determination that a Multiemployer Plan is insolvent as defined in
Title IV of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to
time.
“EURIBOR Screen Rate” means, for any Interest Period, in the case of any
Eurocurrency Borrowing denominated in Euros, the European Interbank Offered Rate
administered by the European Money Markets Institute (or any other entity which takes over the
administration of that rate, or any such benchmark that would replace such rate) for the relevant
period and displayed on Page EURIBOR01 of the Reuters Screen or, in the event that such rate
does not appear on such Reuters page, on any successor or substitute page on such screen that
displays such rate, or on the appropriate page of such other information service that publishes
such rate as shall be selected by the Administrative Agent from time to time in its reasonable
discretion (the “EURIBOR Screen Rate”); provided that, if the EURIBOR Screen Rate so
determined would be less than zero, such rate shall be deemed to be zero for purposes of this
Agreement.
“Euro” refers to the lawful money of the Participating Member States.
“Eurocurrency”, when used in reference to any Loan or Borrowing, refers to
whether such Loan is, or the Loans constituting such Borrowing are, bearing interest at a rate
determined by reference to the Adjusted Eurocurrency Rate.
“Eurocurrency Rate” means, with respect to (A) any Eurocurrency Borrowing
denominated in Euros for any applicable Interest Period, the EURIBOR Screen Rate as of the
Specified Time on the Quotation Day for such Interest Period and, (B) any Eurocurrency
Borrowing denominated in Canadian Dollars for any applicable Interest Period, Term XXXXX
for such Interest Period, and (C) any Eurocurrency Borrowing denominated in any other Foreign
Currency and for any applicable Interest Period, the applicable Local Rate as of the Specified
Time and on the Quotation Day for such Foreign Currency and Interest Period. If the applicable
Screen Rate shall not be available for such Interest Period at the applicable time (the “Impacted
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Interest Period”), then the Eurocurrency Rate for such Interest Period for such Eurocurrency
Borrowing shall be the Interpolated Rate at such time, subject to Section 2.12; provided, that if
the applicable Screen Rate shall not be available with respect to any Eurocurrency Borrowing for
any other reason, then the rate determined in accordance with Section 2.12 shall be the
Eurocurrency Rate for such Eurocurrency Borrowing; provided, further that, if the Eurocurrency
Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Event of Default” has the meaning assigned to such term in Article VII.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from
time to time.
“Excluded Taxes” means any of the following Taxes imposed on or with respect
to the Administrative Agent, any Lender or the Issuing Bank or required to be withheld or
deducted from a payment to the Administrative Agent, any Lender or the Issuing Bank, (a) Taxes
imposed on (or measured by) its net income (however denominated) or franchise Taxes, in each
case, imposed (i) by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, or (ii) that are Other Connection Taxes,
(b) any branch profits Taxes imposed by the United States of America or any similar Tax
imposed by any other jurisdiction in which the Borrower is located, (c) in the case of a Lender
(other than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any U.S.
federal withholding Tax that is imposed on amounts payable to or for the account of such Lender
pursuant to a law in effect at the time such Lender becomes a party to this Agreement (or
designates a new lending office), except to the extent that such Lender (or its assignor, if any)
was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding Tax pursuant to
Section 2.15(a), (d) Taxes attributable to such recipient’s failure to comply with Section 2.15(f),
and (e) any withholding Taxes imposed under FATCA.
“Existing Credit Agreement” has the meaning assigned to such term in the
preamble of this Agreement.
“Existing Loans” has the meaning assigned to such term in the preamble of this
Agreement.
“External Quoted Value” has the meaning assigned to such term in
Section 5.12(b)(ii)(A).
“FATCA” means Sections 1471 through 1474 of the Code, as of the Restatement
Effective Date (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with), any current or future regulations or official
interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code,
any intergovernmental agreement entered into in connection with the implementation of such
Sections of the Code, and any fiscal or regulatory legislation, rules, or official practices adopted
pursuant to any intergovernmental agreement entered into in connection with the implementation
of such Sections of the Code.
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“FCA” has the meaning assigned to such term in Section 1.07.
“Federal Funds Effective Rate” means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System, as published on the next succeeding
Business Day by the NYFRB, or, if such rate is not so published for any day that is a Business
Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it; provided, that if the Federal Funds Effective Rate
is less than zero, such rate shall be zero for purposes of this Agreement.
“Financial Officer” means the chief executive officer, president, chief operating
officer, chief financial officer, chief legal officer, principal accounting officer, treasurer, assistant
treasurer, controller or chief compliance officer of the Borrower, in each case, whom has been
authorized by the Board of Directors of the Borrower to execute the applicable document or
certificate.
“Financing Subsidiary” means (i) any Structured Subsidiary or (ii) any SBIC
Subsidiary.
“First Lien Bank Loan” has the meaning assigned to such term in Section 5.13.
“Floor” means zero.
“Foreign Currency” means at any time any currency other than Dollars.
“Foreign Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars the equivalent amount thereof in the applicable Foreign Currency as
reasonably determined by the Administrative Agent or the applicable Issuing Bank, as the case
may be, at such time on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of such Foreign Currency with Dollars.
“Foreign Lender” means any Lender or Issuing Bank that is not a U.S. Person.
“GAAP” means generally accepted accounting principles in the United States of
America.
“Governmental Authority” means the government of the United States of
America, or of any other nation, or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national body exercising such
powers or functions, such as the European Union or the European Central Bank).
“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in
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any manner, whether directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease property securities or
services for the purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation; provided, that the term
“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of
business or customary indemnification agreements entered into in the ordinary course of business
in connection with obligations that do not constitute Indebtedness. The amount of any Guarantee
at any time shall be deemed to be an amount equal to the maximum stated or determinable
amount of the primary obligation in respect of which such Guarantee is incurred, unless the
terms of such Guarantee expressly provide that the maximum amount for which such Person may
be liable thereunder is a lesser amount (in which case the amount of such Guarantee shall be
deemed to be an amount equal to such lesser amount).
“Guarantee and Security Agreement” means that certain Guarantee, Pledge and
Security Agreement, dated as of the Original Effective Date, among the Borrower, the Subsidiary
Guarantors, the Administrative Agent, each holder (or a representative, agent or trustee therefor)
from time to time of any Secured Longer-Term Indebtedness, and the Collateral Agent.
“Guarantee Assumption Agreement” means a Guarantee Assumption Agreement
substantially in the form of Exhibit B to the Guarantee and Security Agreement (or such other
form that is reasonably acceptable to the Collateral Agent) between the Collateral Agent and an
entity that pursuant to Section 5.08 is required to become a “Subsidiary Guarantor” under the
Guarantee and Security Agreement (with such changes as the Administrative Agent shall request
consistent with the requirements of Section 5.08, or to which the Collateral Agent shall otherwise
consent).
“Hedging Agreement” means any interest rate protection agreement, Credit
Default Swap, foreign currency exchange protection agreement, commodity price protection
agreement or other credit, interest or currency exchange rate or commodity price hedging
arrangement.
“High Yield Securities” has the meaning assigned to such term in Section 5.13.
“IBA” has the meaning assigned to such term in Section 1.07.
“Immaterial Subsidiaries” means those Subsidiaries of the Borrower that are
designated as “Immaterial Subsidiaries” by the Borrower from time to time (it being understood
that the Borrower may at any time change any such designation); provided that such designated
Immaterial Subsidiaries shall collectively meet all of the following criteria as of the date of (x)
the designation of each such Immaterial Subsidiary and (y) the most recent balance sheet
required to be delivered pursuant to Section 5.01 (and the Borrower shall in each case deliver to
the Administrative Agent a certificate of a Financial Officer to such effect setting forth
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reasonably detailed calculations demonstrating such compliance): (a) such Subsidiaries and their
Subsidiaries do not hold any Eligible Portfolio Investment included in the Borrowing Base, (b)
the aggregate assets of all such Subsidiaries and their Subsidiaries (on a consolidated basis) as of
such date do not exceed an amount equal to 3% of the consolidated assets of the Borrower and its
Subsidiaries as of such date; and (c) the aggregate revenues of all such Subsidiaries and their
Subsidiaries (on a consolidated basis) for the fiscal quarter ending on such date do not exceed an
amount equal to 3% of the consolidated revenues of the Borrower and its Subsidiaries for such
period. Notwithstanding the foregoing, no Immaterial Subsidiary that is later designated as a
Subsidiary Guarantor may be an Immaterial Subsidiary.
“Impacted Interest Period” has the meaning assigned to such term in the definition
of “Eurocurrency Rate”.
“Increasing Lender” has the meaning assigned to such term in Section 2.07(e)(i).
“Indebtedness” of any Person means, without duplication, (a) (i) all obligations of
such Person for borrowed money or (ii) with respect to deposits, loans or advances of any kind
that are required to be accounted for under GAAP as a liability on the financial statements of an
Obligor (other than deposits received in connection with a Portfolio Investment in the ordinary
course of the Obligor’s business (including, but not limited to, any deposits or advances in
connection with expense reimbursement, prepaid agency fees, other fees, indemnification, work
fees, tax distributions or purchase price adjustments)), (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar debt instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to property acquired by
such Person, (d) all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade accounts payable and accrued expenses in the ordinary
course of business not past due for more than 90 days after the date on which such trade account
payable was due or that are being contested in good faith), (e) all Indebtedness of others secured
by any Lien on property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed (with the value of such debt being the lower of the
outstanding amount of such debt and the fair market value of the property subject to such Lien),
(f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of
such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of xxxxxxxx, (i) the net amount such Person would be
obligated for under any Hedging Agreement if such Hedging Agreement was terminated at the
time of determination, (j) all obligations, contingent or otherwise, with respect to Disqualified
Equity Interests, and (k) all obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general partner) to the extent
such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor (or such Person is not otherwise liable for such Indebtedness).
Notwithstanding the foregoing, “Indebtedness” shall not include (x) purchase price holdbacks
arising in the ordinary course of business in respect of a portion of the purchase price of an asset
or Investment to satisfy unperformed obligations of the seller of such asset or Investment, (y) a
commitment arising in the ordinary course of business to make a future Portfolio Investment or
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fund the delayed draw or unfunded portion of any existing Portfolio Investment or (z)
indebtedness of an Obligor on account of the sale by an Obligor of the first out tranche of any
First Lien Bank Loan that arises solely as an accounting matter under ASC 860, provided that
such indebtedness (i) is non-recourse to the Borrower and its Subsidiaries and (ii) would not
represent a claim against the Borrower or any of its Subsidiaries in a bankruptcy, insolvency or
liquidation proceeding of the Borrower or its Subsidiaries, in each case in excess of the amount
sold or purportedly sold.
“Independent” when used with respect to any specified Person means that Person
(a) does not have any direct financial interest (other than ownership of a de minimis amount of
the Equity Interests of such Person) or any material indirect financial interest in the Borrower or
any of its Subsidiaries or Affiliates (including its investment advisor or any Affiliate thereof) and
(b) is not an officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions of the Borrower or any of its Subsidiaries or Affiliates (including its
investment advisor or any Affiliate thereof).
“Independent Valuation Provider” means any of Xxxxxxx & Xxxxxx, Xxxxxxxx
Xxxxx Xxxxxx & Xxxxx Capital, Inc., Duff & Xxxxxx LLC, Xxxxxx, Xxxxxx and Company,
Lincoln Partners Advisors, LLC, Xxxxx Xxxxxx Xxxx, LLC and Valuation Research Corporation
and Xxxxx, or any other Independent nationally recognized third-party appraisal firm selected by
the Administrative Agent, and reasonably acceptable to the Borrower.
“Industry Classification Group” means (a) any of the Xxxxx’x classification
groups set forth on Schedule 1.01(d) hereto, together with any classification groups that may be
subsequently established by Moody’s and provided by the Borrower to the Administrative Agent
and (b) any additional industry group classifications established by the Borrower pursuant to
Section 5.12.
“ING” means ING Capital LLC.
“Interest Election Request” means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.06 substantially in the form of Exhibit E or
such other form that is reasonably acceptable to the Administrative Agent.
“Interest Payment Date” means (a) with respect to any ABR Loan, each Quarterly
Date, (b) with respect to any Eurocurrency Loan or Term SOFR Loan, the last day of each
Interest Period therefor and, in the case of any Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at three-month
intervals after the first day of such Interest Period and (c) with respect to any RFR Loan, each
date that is on the numerically corresponding day in each calendar month that is one month after
the Borrowing of such Loan (or, if there is no such numerically corresponding day in such
month, then the last day of such month).
“Interest Period” means, for any Eurocurrency Loan or Borrowing or for any
Term SOFR Loan or Borrowing, the period commencing on the date of such Loan or Borrowing
and ending on the numerically corresponding day in the calendar month that is one, three or six
months (other than with respect to a Eurocurrency Loan or Eurocurrency Borrowing
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denominated in Canadian Dollars, which shall not be available for a period of six months’
duration) thereafter or, with respect to such portion of any such Loan or Borrowing that is
scheduled to be repaid on the Maturity Date, a period of less than one month’s duration
commencing on the date of such Loan or Borrowing and ending on the Maturity Date, as
specified in the applicable Borrowing Request or Interest Election Request; provided, that (a) if
any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on the next
preceding Business Day, and (b) any Interest Period (other than an Interest Period that ends on
the Maturity Date that is permitted to be of less than one month’s duration as provided in this
definition) that commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Loan initially shall be the date on which such Loan is made and
thereafter shall be the effective date of the most recent conversion or continuation of such Loan,
and the date of a Borrowing comprising Loans that have been converted or continued shall be the
effective date of the most recent conversion or continuation of such Loans.
“Internal Revenue Service” or “IRS” means the United States Internal Revenue
Service.
“Internal Value” has the meaning assigned to such term in Section 5.12(b)(ii)(C).
“Interpolated Rate” means, at any time, for any Interest Period, the rate per
annum (rounded to the same number of decimal places as the applicable Screen Rate) determined
by the Administrative Agent (which determination shall be conclusive and binding absent
manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a)
the applicable Screen Rate for the longest period (for which the applicable Screen Rate is
available for the applicable currency) that is shorter than the Impacted Interest Period; and (b) the
applicable Screen Rate for the shortest period (for which that applicable Screen Rate is available
for the applicable currency) that exceeds the Impacted Interest Period, in each case, at such time.
“Investment” means, for any Person: (a) Equity Interests, bonds, notes, debentures
or other securities of any other Person (including convertible securities) or any agreement to
acquire any Equity Interests, bonds, notes, debentures or other securities of any other Person
(including any “short sale” or any sale of any securities at a time when such securities are not
owned by the Person entering into such sale); (b) deposits, advances, loans or other extensions of
credit made to any other Person (including purchases of property from another Person subject to
an understanding or agreement, contingent or otherwise, to resell such property to such Person);
or (c) Hedging Agreements.
“Investment Advisor” means (i) Barings, (ii) an Affiliate of Barings reasonably
satisfactory to the Administrative Agent or (iii) another investment advisor reasonably
satisfactory to the Administrative Agent and approved by the Required Lenders.
“Investment Company Act” means the Investment Company Act of 1940, as
amended from time to time.
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“Investment Policies” means the Borrower’s written investment objectives,
policies, restrictions and limitations as in existence on the Restatement Effective Date, delivered
to the Administrative Agent prior to the Restatement Effective Date, as may be amended or
modified from time to time by a Permitted Policy Amendment.
“Issuing Bank” means ING, in its capacity as the issuer of Letters of Credit
xxxxxxxxx, and its successors in such capacity as provided in Section 2.04(j).
“IVP Supplemental Cap” has the meaning assigned to such term in
Section 9.03(a).
“Last Out Loan” has the meaning assigned to such term in Section 5.13.
“LC Disbursement” means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount
of all outstanding Letters of Credit at such time (including any Letter of Credit for which a draft
has been presented but not yet honored by the Issuing Bank) plus (b) the aggregate amount of all
LC Disbursements in respect of such Letters of Credit that have not yet been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its
Applicable Multicurrency Percentage of the total LC Exposure at such time. Unless otherwise
specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated
amount of such Letter of Credit in effect at such time; provided that with respect to any Letter of
Credit that, by its terms or a document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.
“Lenders” means, collectively, the Dollar Lenders and the Multicurrency Lenders.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement.
“Letter of Credit Documents” means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of Credit) governing
or providing for (a) the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such obligations, each as the same
may be modified and supplemented and in effect from time to time.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any
of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities (other than on market terms at fair
value so long as in the case of any Portfolio Investment, the Value used in determining the
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Borrowing Base is not greater than the purchase or call price), except in favor of the issuer
thereof (and in the case of Portfolio Investments that are equity securities, excluding customary
drag-along, tag-along, right of first refusal, restrictions on assignments or transfers and other
similar rights in favor of other equity holders of the same issuer). For the avoidance of doubt, in
the case of Investments that are loans or other debt obligations, customary restrictions on
assignments or transfers thereof on customary and market based terms pursuant to the underlying
documentation relating to such Investment shall not be deemed to be a “Lien”.
“Loan Documents” means, collectively, this Agreement, the Letter of Credit
Documents, any promissory notes delivered pursuant to Section 2.08(f) and the Security
Documents.
“Loans” means the revolving loans made by the Lenders to the Borrower pursuant
to this Agreement.
“Local Rate” means (i) for Loans or Letters of Credit in AUD, the AUD Rate, (ii)
for Loans or Letters of Credit in NZD, the NZD Rate, (iii) for Loans or Letters of Credit in
Canadian Dollars, the CDOR Rate, (iv) for Loans or Letters of Credit in Swedish Krona, the
XXXXXX Rate, (v) for Loans or Letters of Credit in Norwegian Krone, the NIBOR Rate and (vi)
for Loans or Letters of Credit in Danish Krone, the CIBOR Rate.
“Local Screen Rate” means the AUD Screen Rate, the NZD Screen Rate, the
CDOR Rate, the XXXXXX Screen Rate, the NIBOR Screen Rate, the CIBOR Screen Rate,
XXXXX and, XXXXX and XXXXX as published on the XXXXX Administrator’s Website
(following a Benchmark Transition Event with respect to Xxxx XXXXX), collectively and
individually as the context may require.
“Long-Term U.S. Government Securities” has the meaning assigned to such term
in Section 5.13.
“Margin Stock” means “margin stock” within the meaning of Regulations D, T, U
and X.
“Material Adverse Effect” means a material adverse effect on (a) the business,
Portfolio Investments of the Obligors (taken as a whole) and other assets, liabilities (actual or
contingent), operations or condition (financial or otherwise) of the Borrower and its Subsidiaries
(other than any Financing Subsidiary), taken as a whole, or (b) the validity or enforceability of
any of the Loan Documents or the rights or remedies of the Administrative Agent and the
Lenders thereunder or the ability of the Obligors to perform their respective obligations
thereunder.
“Material Indebtedness” means (a) Indebtedness (other than the Loans, Letters of
Credit and Hedging Agreements), of any one or more of the Borrower and its Subsidiaries
(including each Financing Subsidiary) in an aggregate outstanding principal amount exceeding
$20,000,000 and (b) obligations in respect of one or more Hedging Agreements or other swap or
derivative transactions under which the maximum aggregate amount (after giving effect to any
netting agreements) that the Borrower and its Subsidiaries would be required to pay if such
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Hedging Agreement(s) or other swap or derivative transactions were terminated at such time
would exceed $20,000,000.
“Maturity Date” means the date that is the one year anniversary of the Revolver
Termination Date.
“Mezzanine Investments” has the meaning assigned to such term in Section 5.13.
“Xxxxx’x” means Xxxxx’x Investors Service, Inc. or any successor thereto.
“Multicurrency Commitment” means, with respect to each Multicurrency Lender,
the commitment of such Multicurrency Lender to make Loans, and to acquire participations in
Letters of Credit denominated in Dollars and in Agreed Foreign Currencies hereunder, expressed
as an amount representing the maximum aggregate amount of such Lender’s Multicurrency
Credit Exposure hereunder, as such commitment may be (a) reduced or increased from time to
time pursuant to Section 2.07 or reduced from time to time pursuant to Section 2.09 or as
otherwise provided in this Agreement and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The aggregate amount of each
Xxxxxx’s Multicurrency Commitment as of the Amendment No. 2 Effective Date is set forth on
Schedule 1.01(b) or in the Assignment Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable.
“Multicurrency Credit Exposure” means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Xxxxxx’s Loans at such time, made or
incurred under such Lender’s Multicurrency Commitments, and such Lender’s LC Exposure.
“Multicurrency Lender” means the Persons listed on Schedule 1.01(b) as having
Multicurrency Commitments and any other Person that shall have become a party hereto
pursuant to an Assignment and Assumption that provides for it to assume a Multicurrency
Commitment or to acquire Multicurrency Credit Exposure, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Assumption or otherwise in
accordance with the terms hereof.
“Multicurrency Loan” means a Loan denominated in Dollars or in an Agreed
Foreign Currency made under the Multicurrency Commitments.
“Multiemployer Plan” means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA in respect of which the Borrower or any ERISA Affiliate makes or
is required to make any contributions.
“National Currency” means the currency, other than the Euro, of a Participating
Member State.
“Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount
equal to (a) the sum of Cash payments and Cash Equivalents received by the Obligors from such
Asset Sale (including any Cash or Cash Equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so
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received), minus (b) any costs, fees, commissions, premiums and expenses actually incurred by
any Obligor directly incidental to such Asset Sale and payable in cash to a Person that is not an
Affiliate of any Obligor (or if payable to an Affiliate, only to the extent such expenses are
reasonable and customary), including reasonable legal fees and expenses, minus (c) all taxes paid
or reasonably estimated to be payable by any Obligor (other than any income tax) as a result of
such Asset Sale (after taking into account any applicable tax credits or deductions that are
reasonably expected to be available), minus (d) reserves for indemnification, purchase price
adjustments or analogous arrangements reasonably estimated by the Borrower or the relevant
Subsidiary in connection with such Asset Sale; provided that (i) such reserved amount shall not
be included in the Borrowing Base and (ii) if the amount of any estimated reserves pursuant to
this clause (d) exceeds the amount actually required to be paid in cash in respect of
indemnification, purchase price adjustments or analogous arrangements for such Asset Sale, the
aggregate amount of such excess shall constitute Net Asset Sale Proceeds (as of the date the
Borrower determines such excess exists), minus (e) payments of unassumed liabilities relating to
the assets sold or otherwise disposed of at the time, or within 30 days after, the date of such
Asset Sale.
“Net Return of Capital” means an amount equal to (i) (a) any Cash amount (and
proceeds of any non-Cash amount) received by any Obligor at any time in respect of the
outstanding principal of any Portfolio Investment (whether at stated maturity, by acceleration or
otherwise), (b) without duplication of amounts received under clause (a), any Cash proceeds
(including Cash proceeds of any non-Cash consideration) received by any Obligor at any time
from the sale of any property or assets pledged as collateral in respect of any Portfolio
Investment to the extent such Cash proceeds are less than or equal to the outstanding principal
balance of such Portfolio Investment, (c) solely to the extent such proceeds, along with any such
proceeds previously received (other than on account of taxes paid or reasonably estimated to be
payable), are less than or equal to the Obligor’s investments therein, any cash amount (and Cash
proceeds of any non-Cash amount) received by any Obligor at any time in respect of any
Portfolio Investment that is an Equity Interest (x) upon the liquidation or dissolution of the
Portfolio Company of such Portfolio Investment, (y) as a distribution of capital made on or in
respect of such Portfolio Investment (other than, in the case of a Portfolio Investment that is
capital stock, any distribution on account of actual taxes paid or reasonably estimated to be
payable by an Obligor solely in its capacity as a holder of such Equity Interest (and not on
account of such Obligor’s status as a RIC)), or (z) pursuant to the recapitalization or
reclassification of the capital of the Portfolio Company of such Portfolio Investment or pursuant
to the reorganization of such Portfolio Company or (d) any similar return of capital received by
any Obligor in Cash (and Cash proceeds of any non-Cash amount) in respect of any Portfolio
Investment minus (ii) any costs, fees, commissions, premiums and expenses incurred by any
Obligor directly incidental to such Cash receipts, including reasonable legal fees and expenses.
“New Zealand Dollars” and “NZD” refers to the lawful currency of New Zealand.
“NIBOR Rate” means, with respect to any Interest Period, in the case of any
Eurocurrency Borrowing denominated in NOK, a rate per annum equal to the Norwegian
Interbank Offered Rate administered by Norske Finansielle Referanser (or any other person that
takes over administration of that rate) for deposits in NOK with a term equivalent to such Interest
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Period as displayed on such screen that displays such rate, or on the appropriate page of such
other information service that publishes such rate as shall be selected by the Administrative
Agent from time to time in its reasonable discretion (the “NIBOR Screen Rate”) as of 11:00 a.m.
London time two Business Days prior to the commencement of such Interest Period. If the
NIBOR Rate shall be less than zero, the NIBOR Rate shall be deemed to be zero for purposes of
this agreement.
“Non-Consenting Lender” has the meaning assigned to such term in
Section 9.02(d).
“Norwegian Krone” and “NOK” refers to the lawful currency of Norway.
“NYFRB” means the Federal Reserve Bank of New York.
“NZD Rate” means, for any Loans in New Zealand Dollars, the (a) NZD Screen
Rate plus (b) 0.30%.
“NZD Screen Rate” means, with respect to any Interest Period, the rate per annum
determined by the Administrative Agent which is equal to the average bank bill reference rate as
administered by the New Zealand Financial Markets Association (or any other Person that takes
over the administration of such rate) for bills of exchange with a tenor equal in length to such
Interest Period as displayed on page BKBM of the Reuters screen (or, in the event such rate does
not appear on such page, on any successor or substitute page on such screen that displays such
rate or on the appropriate page of such other information service that publishes such rate as shall
be selected by the Administrative Agent from time to time in its reasonable discretion) at or
about 11:00 a.m. (Wellington, New Zealand time) on the first day of such Interest Period. If the
NZD Screen Rate shall be less than zero, the NZD Screen Rate shall be deemed to be zero for
purposes of this Agreement.
“Obligors” means, collectively, the Borrower and the Subsidiary Guarantors.
“Obligors’ Net Worth” means, at any date, Stockholders’ Equity at such date,
minus the net asset value held by any Obligor in (x) any non-Obligor Subsidiary and (y) any
joint venture, except to the extent that the Collateral Agent maintains a first priority, perfected
Lien (subject to no other Liens other than Eligible Liens) in the Equity Interests of such joint
venture owned by such Obligor.
“OFAC” has the meaning assigned to such term in Section 3.20.
“Original Effective Date” has the meaning assigned to such term in the preamble
to this Agreement.
“Other Connection Taxes” means, with respect to any recipient of any payment to
be made by or on account of any obligation of the Borrower hereunder, Taxes imposed as a
result of a present or former connection between such recipient and the jurisdiction imposing
such Tax (other than connections arising from such recipient having executed, delivered, become
a party to, performed its obligations under, received payments under, received or perfected a
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security interest under, engaged in any other transaction pursuant to or enforced any Loan
Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Covered Indebtedness” means, collectively, (i) Secured Longer-Term
Indebtedness and (ii) Unsecured Shorter-Term Indebtedness.
“Other Taxes” means any and all present or future stamp, court, documentary,
intangible, recording or filing Taxes or any other excise or property Taxes, charges or similar
levies arising from any payment made under any Loan Document or from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are
imposed with respect to an assignment (other than an assignment made pursuant to
Section 2.18(b)).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both
overnight federal funds and overnight Eurocurrency transactions by U.S.-managed banking
offices of depository institutions, as such composite rate shall be determined by the NYFRB as
set forth on its public website from time to time, and published on the next succeeding Business
Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB
shall commence to publish such composite rate); provided, that if the Overnight Bank Funding
Rate is less than zero, such rate shall be zero for purposes of this Agreement.
“Participant” has the meaning assigned to such term in Section 9.04(f).
“Participant Register” has the meaning assigned to such term in Section 9.04(f).
“Participating Member State” means any member state of the European
Community that adopts or has adopted the Euro as its lawful currency in accordance with the
legislation of the European Union relating to the European Monetary Union.
“Payment” has the meaning assigned to such term in Section 8.13(b).
“Payment Notice” has the meaning assigned to such term in Section 8.13(b).
“Payor” has the meaning assigned to such term in Section 8.13(b).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined
in ERISA and any successor entity performing similar functions.
“Performing” has the meaning assigned to such term in Section 5.13.
“Performing Broadly Syndicated Loan” has the meaning assigned to such term in
Section 5.13.
“Performing Covenant-Lite Loans” has the meaning assigned to such term in
Section 5.13.
“Performing DIP Loans” has the meaning assigned to such term in Section 5.13.
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“Performing First Lien Bank Loans” has the meaning assigned to such term in
Section 5.13.
“Performing First Lien Middle Market Loans” has the meaning assigned to such
term in Section 5.13.
“Performing High Yield Securities” has the meaning assigned to such term in
Section 5.13.
“Performing Last Out Loans” has the meaning assigned to such term in
Section 5.13.
“Performing Mezzanine Investments” has the meaning assigned to such term in
Section 5.13.
“Performing Second Lien Bank Loans” has the meaning assigned to such term in
Section 5.13.
“Periodic Term XXXXX Determination Day” has the meaning specified in the
definition of “Term XXXXX”.
“Periodic Term SOFR Determination Day” has the meaning specified in the
definition of “Term SOFR”.
“Permitted Equity Interests” means common stock of the Borrower that after its
issuance is not subject to any agreement between the holder of such common stock and the
Borrower where the Borrower is required to purchase, redeem, retire, acquire, cancel or
terminate any such common stock at any time prior to the first anniversary of the later of the
Maturity Date (as in effect from time to time) and the Termination Date.
“Permitted Foreign Jurisdiction” has the meaning assigned to such term in
Section 5.13.
“Permitted Foreign Jurisdiction Portfolio Investment” has the meaning assigned to
such term in Section 5.13.
“Permitted Liens” means (a) Liens imposed by any Governmental Authority for
taxes, assessments or charges not yet due or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are maintained on the books of
the Borrower in accordance with GAAP; (b) Liens of clearing agencies, broker-dealers and
similar Liens incurred in the ordinary course of business, provided that such Liens (i) attach only
to the securities (or proceeds) being purchased or sold and (ii) secure only obligations incurred in
connection with such purchase or sale, and not any obligation in connection with margin
financing; (c) Xxxxx imposed by law, such as materialmen’s, mechanics’, carriers’, workmens’,
storage, landlord, and repairmen’s Liens and other similar Liens arising in the ordinary course of
business and securing obligations (other than Indebtedness for borrowed money) not yet due or
that are being contested in good faith and by appropriate proceedings if adequate reserves with
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respect thereto are maintained on the books of the Borrower in accordance with GAAP; (d) Liens
incurred or pledges or deposits made to secure obligations incurred in the ordinary course of
business under workers’ compensation laws, unemployment insurance or other similar social
security legislation (other than in respect of employee benefit plans subject to ERISA) or to
secure public or statutory obligations; (e) Liens securing the performance of, or payment in
respect of, bids, insurance premiums, deductibles or co-insured amounts, tenders, government or
utility contracts (other than for the repayment of borrowed money), surety, stay, customs and
appeal bonds and other obligations of a similar nature incurred in the ordinary course of
business; (f) Liens arising out of judgments or awards that have been in force for less than the
applicable period for taking an appeal so long as such judgments or awards do not constitute an
Event of Default; (g) customary rights of setoff and liens upon (i) deposits of cash in favor of
banks or other depository institutions in which such cash is maintained in the ordinary course of
business, (ii) cash and financial assets held in securities accounts in favor of banks and other
financial institutions with which such accounts are maintained in the ordinary course of business
and (iii) assets held by a custodian in favor of such custodian in the ordinary course of business,
in the case of each of clauses (i) through (iii) above, securing payment of fees, indemnities,
charges for returning items and other similar obligations; (h) Liens arising solely from
precautionary filings of financing statements under the Uniform Commercial Code of the
applicable jurisdictions in respect of operating leases entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business; (i) Eligible Liens; (j) Liens in favor of any
escrow agent solely on and in respect of any xxxx xxxxxxx money deposits made by any Obligor
in connection with any letter of intent or purchase agreement (to the extent that the acquisition or
disposition with respect thereto is otherwise permitted hereunder); (k) zoning restrictions,
easements, licenses, or other restrictions on the use of any real estate (including leasehold title),
in each case which do not interfere with or affect in any material respect the ordinary course
conduct of the business of the Borrower and its Subsidiaries; (l) purchase money Liens on
specific equipment and fixtures, provided that (i) such Liens only attach to such equipment and
fixtures and (ii) the Indebtedness secured thereby does not exceed the lesser of the cost and the
fair market value of such equipment and fixtures at the time of the acquisition thereof; (m)
deposits of money securing leases to which Borrower is a party as lessee made in the ordinary
course of business; and (n) precautionary Liens and filing of financing statements under the
Uniform Commercial Code covering assets sold or contributed to any Person not prohibited
hereunder.
“Permitted Policy Amendment” is an amendment, modification, termination or
restatement of the Investment Policies or Valuation Policy, in each case that is any of
(i) approved in writing by the Administrative Agent (with the consent of the Required Lenders),
(ii) required by applicable law or Governmental Authority, or (iii) is not or could not reasonably
be expected to be materially adverse to the Lenders.
“Permitted Prior Working Capital Lien” has the meaning assigned to such term in
Section 5.13.
“Permitted SBIC Guarantee” means a guarantee by the Borrower of SBA
Indebtedness of an SBIC Subsidiary on the SBA’s then applicable form; provided that the
recourse to the Obligors thereunder is expressly limited only to periods after the occurrence of an
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event or condition that is an impermissible change in the control of such SBIC Subsidiary (it
being understood that, as provided in clause (q) of Article VII, it shall be an Event of Default
hereunder if any such event or condition giving rise to such recourse occurs).
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
“PIK Obligation” has the meaning assigned to such term in Section 5.13.
“Plan” means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“Portfolio Company” means the issuer or obligor under any Portfolio Investment
held by any Obligor.
“Portfolio Investment” means any Investment held by the Borrower and its
Subsidiaries in their asset portfolio and included on the schedule of investments on the financial
statements of the Borrower delivered pursuant to Section 5.01(a) or (b) (or, for any Investment
made during a given quarter and before a schedule of investments is required to be delivered
pursuant to Section 5.01(a) or (b), as applicable, with respect to such quarter, is intended to be
included on the schedule of investments when such Investment is made) (and, for the avoidance
of doubt, shall not include any Subsidiary of the Borrower).
“Pounds Sterling” means the lawful currency of England.
“Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money
Rates Section, as the “U.S. Prime Rate” (or its successor), as in effect from time to time or, if
The Wall Street Journal ceases to quote such rate, the highest per annum rate published by the
Federal Reserve Board in the Federal Reserve Statistical Release H.15 (519) (Selected Interest
Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate
quoted therein (as determined by the Administrative Agent) or any similar release by the Federal
Reserve Board (as determined by the Administrative Agent). The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually charged to any customer. The
Administrative Agent or any Lender may make commercial loans or other loans at rates of
interest at, above, or below the Prime Rate.
“Principal Financial Center” means, in the case of any Currency, the principal
financial center where such Currency is cleared and settled, as determined by the Administrative
Agent.
“Pro-Rata Borrowing” has the meaning assigned to such term in Section 2.03(a).
“Pro-Rata Dollar Portion” means, in connection with any Pro-Rata Borrowing in
Dollars, an amount equal to (i) the aggregate amount of such Pro-Rata Borrowing multiplied by
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(ii) the aggregate Dollar Commitments of all Dollar Lenders at such time divided by (iii) the
aggregate Commitments of all Lenders at such time.
“Pro-Rata Multicurrency Portion” means, in connection with any Pro-Rata
Borrowing in Dollars, an amount equal to (i) the aggregate amount of such Pro-Rata Borrowing
multiplied by (ii) the aggregate Multicurrency Commitments of all Multicurrency Lenders at
such time divided by (iii) the aggregate Commitments of all Lenders at such time.
“PTE” means a prohibited transaction class exemption issued by the U.S.
Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning assigned to such term in Section 9.18.
“QFC Credit Support” has the meaning assigned to such term in Section 9.18.
“Quarterly Dates” means the last Business Day of March, June, September and
December in each year, commencing on June 30, 2021.
“Quotation Day” means, with respect to any Eurocurrency Borrowing (other than
any Eurocurrency Borrowing denominated in Canadian Dollars) for any Interest Period, (i) if the
Currency is Canadian Dollars or AUD, the first day of such Interest Period, (ii) if the Currency is
Euro, two TARGET Days before the first day of such Interest Period and (iii) for any other
Currency, (other than Canadian Dollars), two Business Days prior to the first day of such Interest
Period, unless, in each case, market practice differs in the relevant market where the
Eurocurrency Rate for such Currency is to be determined, in which case the Quotation Day will
be determined by the Administrative Agent in accordance with market practice in such market
(and if quotations would normally be given on more than one day, then the Quotation Day shall
be the last of those days).
“Quoted Investments” has the meaning assigned to such term in
Section 5.12(b)(ii)(A).
“Register” has the meaning assigned to such term in Section 9.04(c).
“Regulations D, T, U and X” means, respectively, Regulations D, T, U and X of
the Board of Governors of the Federal Reserve System (or any successor), as the same may be
modified and supplemented and in effect from time to time.
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, partners, officers, employees, agents, advisors and
representatives of such Person and such Person’s Affiliates.
“Relevant Governmental Body” means (i) with respect to a Benchmark
Replacement in respect of Loans denominated in Dollars, the Board or the NYFRB, or a
committee officially endorsed or convened by the Board or the NYFRB, or any successor
thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in
Pounds Sterling, the Bank of England, or a committee officially endorsed or convened by the
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Bank of England, or any successor thereto and (iii) with respect to any Benchmark Replacement
in respect of Loans denominated in an Agreed Foreign Currency other than Pounds Sterling, (a)
the central bank for the currency in which such Benchmark Replacement is denominated or (b)
any working group or committee officially endorsed or convened by (1) the central bank for the
currency in which such Benchmark Replacement is denominated, (2) any central bank or other
supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the
administrator of such Benchmark Replacement, (3) a group of those central banks or other
supervisors or (4) the Financial Stability Board or any part thereof.
“Required Lenders” means, at any time, Lenders having Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Credit Exposures and
unused Commitments at such time. The Required Lenders of a Class (which shall include the
terms “Required Dollar Lenders” and “Required Multicurrency Lenders”) means Lenders having
Credit Exposures and unused Commitments of such Class representing more than 50% of the
sum of the total Credit Exposures and unused Commitments of such Class; provided that the
Credit Exposures and unused Commitments of any Defaulting Lenders shall be disregarded in
the determination of Required Lenders to the extent provided for in Section 2.17.
“Required Payment” has the meaning assigned to such term in Section 8.13(b).
“Required Payment Amount” has the meaning assigned to such term in
Section 6.05(b).
“Resolution Authority” means an EEA Resolution Authority or, with respect to
any UK Financial Institution, a UK Resolution Authority.
“Restatement Effective Date” means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any shares of any class of capital stock of the
Borrower or any of its Subsidiaries, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such shares of capital stock of the
Borrower or any option, warrant or other right to acquire any such shares of capital stock of the
Borrower (other than any equity awards granted to employees, officers, directors and consultants
of the Borrower and its Affiliates); provided, for clarity, neither the conversion of convertible
debt into Permitted Equity Interests nor the purchase, redemption, retirement, acquisition,
cancellation or termination of convertible debt made solely with Permitted Equity Interests (other
than interest or expenses or fractional shares, which may be payable in cash) shall be a Restricted
Payment hereunder.
“Restructured Investment” has the meaning assigned to such term in Section 5.13.
“Revaluation Date” means (a) with respect to any Loan, each of the following:
(i) each date of a Borrowing of a Eurocurrency Loan or RFR Loan denominated in an Agreed
Foreign Currency, (ii) each date of a continuation of a Eurocurrency Loan denominated in an
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Agreed Foreign Currency and (iii) such additional dates as the Administrative Agent shall
reasonably and in good faith determine or the Required Lenders shall reasonably and in good
faith require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of
issuance of a Letter of Credit denominated in an Agreed Foreign Currency, (ii) each date of an
amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii)
each date of any payment by the Issuing Bank under any Letter of Credit denominated in an
Agreed Foreign Currency and (iv) such additional dates as the Administrative Agent or the
Issuing Bank shall reasonably and in good faith determine or the Required Lenders shall
reasonably and in good faith require.
“Revolver Termination Date” means the date that is the four (4) year anniversary
of the Restatement Effective Date, unless extended with the consent of each Lender in its sole
and absolute discretion.
“RFR”, when used in reference to any Loan or Borrowing, refers to whether such
Loan or the Loans constituting such Borrowing, are bearing interest at a rate determined by
reference to Adjusted Daily Simple RFR.
“RFR Business Day” means, for any RFR Loan denominated in (a) Pounds
Xxxxxxxx, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed
for general business in London, and (b) Swiss Francs, any day except for (i) a Saturday, (ii) a
Sunday or (iii) a day on which banks are closed for the settlement of payments and foreign
exchange transactions in Zurich, and (c) Canadian Dollars, any day except (i) a Saturday, (ii) a
Sunday or (iii) a day on which commercial banks in Toronto are authorized or required by law to
remain closed; provided that, for purposes of notice requirements in Sections 2.03(a) and 2.09(g),
in each case, such day is also a Business Day.
“RFR Rate Day” has the meaning specified in the definition of “Daily Simple
RFR”.
“RIC” means a Person qualifying for treatment as a “regulated investment
company” under Subchapter M of the Code.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., a New York
corporation, or any successor thereto.
“Sanctioned Country” means, at any time, a country, territory or region that is, or
whose government is, the subject or target of any comprehensive Sanctions (which are, as of the
date of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea/Sevastopol region of
Ukraine).
“Sanctions” has the meaning assigned to such term in Section 3.20.
“SARON” means, with respect to any RFR Business Day, a rate per annum equal
to the Swiss Average Rate Overnight for such RFR Business Day published by the SIX Swiss
Exchange AG (or any successor administrator for the Swiss Average Rate Overnight) on the SIX
Swiss Exchange AG’s website, currently at xxxx://xxx.xxx-xxxxx.xxx (or any successor source
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for the Swiss Average Rate Overnight identified as such by the administrator for the Swiss
Average Rate Overnight from time to time).
“SARON Adjustment” means with respect to SARON, -0.0571% (-5.71 basis
points).
“SBA” means the United States Small Business Administration or any
Governmental Authority succeeding to any or all of the functions thereof.
“SBIC Subsidiary” means any Subsidiary of the Borrower or any other Obligor
(or such Subsidiary’s general partner or manager entity) that is (x) either (i) a “small business
investment company” licensed by the SBA (or that has applied for such a license and is actively
pursuing the granting thereof by appropriate proceedings promptly instituted and diligently
conducted) under the Small Business Investment Act of 1958, as amended, or (ii) any wholly-
owned, direct or indirect, Subsidiary of an entity referred to in clause (x)(i) of this definition, and
(y) designated in writing by the Borrower (as provided below) as an SBIC Subsidiary, so long as:
(a)other than pursuant to a Permitted SBIC Guarantee or the
requirement by the SBA that the Borrower or such Obligor make an equity or capital
contribution to the SBIC Subsidiary in connection with its incurrence of SBA
Indebtedness (provided that such contribution is permitted by Section 6.03(e) or 6.03(i)
and is made substantially contemporaneously with such incurrence), no portion of the
Indebtedness or any other obligations (contingent or otherwise) of such Person (i) is
Guaranteed by the Borrower or any of its Subsidiaries (other than any SBIC Subsidiary),
(ii) is recourse to or obligates the Borrower or any of its Subsidiaries (other than any
SBIC Subsidiary) in any way, or (iii) subjects any property of the Borrower or any of its
Subsidiaries (other than any SBIC Subsidiary) to the satisfaction thereof, other than
Equity Interests in any SBIC Subsidiary pledged to secure such Indebtedness;
(b)other than pursuant to a Permitted SBIC Guarantee, neither the
Borrower nor any of its Subsidiaries has any material contract, agreement, arrangement
or understanding with such Person other than on terms no less favorable to the Borrower
or such Subsidiary than those that might be obtained at the time from Persons that are not
Affiliates of the Borrower or such Subsidiary;
(c)neither the Borrower nor any of its Subsidiaries (other than any
SBIC Subsidiary) has any obligation to such Person to maintain or preserve its financial
condition or cause it to achieve certain levels of operating results; and
(d)such Person has not Guaranteed or become a co-borrower under,
and has not granted a security interest in any of its properties to secure, and the Equity
Interests it has issued are not pledged to secure, in each case, any indebtedness, liabilities
or obligations of any one or more of the Obligors.
Any designation by the Borrower under clause (y) above shall be effected
pursuant to a certificate of a Financial Officer delivered to the Administrative Agent, which
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certificate shall include a statement to the effect that, to the best of such Financial Officer’s
knowledge, such designation complied with the foregoing conditions.
“Screen Rate” means the Term SOFR Reference Rate, the EURIBOR Screen
Rate, the Term XXXXX Reference Rate and the Local Screen Rates collectively and individually
as the context may require.
“SEC” means the United States Securities and Exchange Commission or any
Governmental Authority succeeding to any or all of the functions thereof.
“Second Lien Bank Loan” has the meaning assigned to such term in Section 5.13.
“Secured Longer-Term Indebtedness” means, as at any date, Indebtedness of the
Xxxxxxxx (other than Indebtedness hereunder) (which may be Guaranteed by Subsidiary
Guarantors) that:
(a)has no amortization (other than for amortization in an amount not
greater than 1% of the aggregate initial principal amount of such Indebtedness per annum
(or an amount in excess of 1% of the aggregate initial principal amount of such
Indebtedness per annum on terms mutually agreeable to the Borrower and the Required
Lenders)) or mandatory redemption, repurchase or prepayment prior to, and a final
maturity date not earlier than, six months after the Maturity Date (it being understood that
any amortization, mandatory redemption, repurchase or prepayment obligation or put
right that is contingent upon the happening of an event that is not certain to occur
(including, without limitation, a Change in Control or bankruptcy) shall not in and of
itself be deemed to disqualify such Indebtedness under this clause (a)); provided that any
payment prior to the Termination Date in respect of any such obligation or right shall
only be made to the extent permitted by Section 6.12);
(b)is incurred pursuant to documentation containing (i) financial
covenants, covenants governing the borrowing base, if any, covenants regarding portfolio
valuations, and events of default that are no more restrictive in any respect upon the
Borrower and its Subsidiaries, at any time that any Commitments or Loans are
outstanding hereunder (including pursuant to any maturity extensions), than those set
forth in this Agreement (other than, if such Indebtedness is governed by a customary
indenture or similar instrument, events of default that are customary in indentures or
similar instruments and that have no analogous provisions in this Agreement or credit
agreements generally) (provided that, upon the Borrower’s request, this Agreement will
be deemed to be automatically amended (and, upon the request of the Administrative
Agent or the Required Lenders, the Borrower and the Lenders shall enter into a document
evidencing such amendment), mutatis mutandis, to make such covenants more restrictive
in this Agreement as may be necessary to meet the requirements of this clause (b)(i)) and
(ii) other terms (other than interest and any commitment or related fees) that are no more
restrictive in any material respect upon the Borrower and its Subsidiaries, at any time that
any Commitments or Loans are outstanding hereunder (including pursuant to any
maturity extensions), than those set forth in this Agreement; and
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(c)ranks pari passu with the obligations under this Agreement and is
not secured by any assets of any Person other than any assets of any Obligor pursuant to
the Security Documents and the holders of which, or the agent, trustee or representative
of such holders on behalf of and for the benefit of such holders, have agreed to either
(x) be bound by the provisions of the Security Documents by executing the joinder
attached as Exhibit E to the Guarantee and Security Agreement or (y) be bound by the
provisions of the Security Documents in a manner reasonably satisfactory to the
Administrative Agent and the Collateral Agent. For the avoidance of doubt, (a) Secured
Longer-Term Indebtedness shall also include any refinancing, refunding, renewal or
extension of any Secured Longer-Term Indebtedness so long as such refinanced,
refunded, renewed or extended Indebtedness continues to satisfy the requirements of this
definition and (b) any payment on account of Secured Longer-Term Indebtedness shall be
subject to Section 6.12.
“Secured Parties” has the meaning assigned to such term in the Guarantee and
Security Agreement.
“Security Documents” means, collectively, the Guarantee and Security
Agreement, the Control Agreements, all Uniform Commercial Code financing statements filed
with respect to the security interests in personal property created pursuant to the Guarantee and
Security Agreement, and all other assignments, pledge agreements, security agreements, control
agreements and other instruments executed and delivered at any time by any of the Obligors
pursuant to the Guarantee and Security Agreement or otherwise providing or relating to any
collateral security for any of the Secured Obligations under and as defined in the Guarantee and
Security Agreement.
“Senior Securities” means senior securities (as such term is defined and
determined pursuant to the Investment Company Act and any orders of the SEC issued to the
Borrower thereunder as in effect on the Restatement Effective Date).
“Settlement-Date Basis” means that any Investment that has been purchased will
not be treated as an Eligible Portfolio Investment until such purchase has settled, and any
Eligible Portfolio Investment which has been sold will not be excluded as an Eligible Portfolio
Investment until such sale has settled.
“Short-Term U.S. Government Securities” has the meaning assigned to such term
in Section 5.13.
“SOFR” means a rate per annum equal to the secured overnight financing rate for
such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website.
“SOFR Adjustment” means, for any calculation with respect to an ABR Loan or a
Term SOFR Loan, a percentage per annum as set forth as follows for the applicable Type of such
Loan and (if applicable) Interest Period therefor: (a) with respect to ABR Loans, 0.10% (10 basis
points) and (b) with respect to Term SOFR Loans, 0.10% (10 basis points) for an Interest Period
of one month, 0.15% (15 basis points) for an Interest Period of three months and 0.25% (25 basis
points) for an Interest Period of six months.
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“SOFR Administrator” means the NYFRB (or a successor administrator of the
secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the NYFRB, currently at
xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate
identified as such by the SOFR Administrator from time to time.
“Solvent” means, with respect to any Obligor, that as of the date of determination,
both (i) (a) the sum of such Xxxxxxx’s debt and liabilities (including contingent liabilities) does
not exceed the present fair saleable value of such Person’s present assets, (b) such Obligor’s
capital is not unreasonably small in relation to its business as contemplated on the Restatement
Effective Date and reflected in any projections delivered to the Lenders or with respect to any
transaction contemplated or undertaken after the Restatement Effective Date, and (c) such
Obligor has not incurred and does not intend to incur, or believe (nor should it reasonably
believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether
at maturity or otherwise); and (ii) such Obligor is “solvent” within the meaning given to such
term and similar terms under applicable laws relating to fraudulent transfers and conveyances.
For purposes of this definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liabilities meet the criteria for accrual under Statement
of Financial Accounting Standard No. 5).
“XXXXX” means, with respect to any RFR Business Day, a rate per annum equal
to the Sterling Overnight Index Average for such RFR Business Day published by the Bank of
England (or any successor administrator or the Sterling Overnight Index Average) on the Bank
of England’s website, currently at xxxx://xxx.xxxxxxxxxxxxx.xx.xx (or any successor source for
the Sterling Overnight Index Average identified as such by the administrator for the Sterling
Overnight Index Average).
“XXXXX Xxxxxxxxxx” means with respect to XXXXX, 0.0326% (3.26 basis
points).
“Specified Time” means (i) in relation to a Loan in Canadian Dollars, as of 10:00
a.m., Toronto, Ontario time, (ii) in relation to a Loan in Euros, 11:00 a.m., Brussels time, (iiiii) in
relation to a Loan in AUD, as of 11:00 a.m., Sydney, Australia, (iviii) in relation to a Loan in
Swedish Krona, as of 11:00 a.m., London time, (viv) in relation to a Loan in Norwegian Krone,
11:00 a.m., London time, (viv) in relation to a Loan in New Zealand Dollars, 11:00 a.m.,
Wellington, New Zealand time, and (viivi) in relation to a Loan in Danish Krone, 11:00 a.m.,
Copenhagen, Denmark time.
“Spot Rate” for a currency means the rate determined by the Administrative
Agent or the Issuing Bank, as applicable, to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with another currency
through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date as of which the foreign exchange computation is made; provided
that the Administrative Agent or the Issuing Bank may obtain such spot rate from another
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financial institution designated by the Administrative Agent or Issuing Bank if the Person acting
in such capacity does not have as of the date of determination a spot buying rate for any such
currency; and provided further that the Issuing Bank may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit
denominated in an Agreed Foreign Currency.
“Standard Securitization Undertakings” means, collectively, (a) customary arms-
length servicing obligations (together with any related performance guarantees), (b) obligations
(together with any related performance guarantees) to refund the purchase price or grant
purchase price credits for breach of representations and warranties referred to in clause (c), and
(c) representations, warranties, covenants and indemnities (together with any related
performance guarantees) of a type that are reasonably customary in commercial loan
securitizations (in each case in clauses (a), (b) and (c) excluding obligations related to the
collectability of the assets sold or the creditworthiness of the underlying obligors and excluding
obligations that constitute credit recourse).
“Statutory Reserve Rate” means, for the Interest Period for any Eurocurrency
Borrowing, a fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the arithmetic mean, taken over each day in
such Interest Period, of the aggregate of the applicable maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject for eurocurrency funding (currently
referred to as “Eurocurrency liabilities” in Regulation D). Such reserve percentages shall include
those imposed pursuant to Regulation D. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under
Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.
“XXXXXX Rate” means, in the case of any Eurocurrency Borrowing denominated
in SEK, with respect to any Interest Period, the Stockholm Interbank Offered Rate administered
by the Swedish Bankers’ Association (or any other person that takes over administration of that
rate) for deposits in Swedish Krona with a term equivalent to such Interest Period as displayed
on such screen that displays such rate, or on the appropriate page of such other information
service that publishes such rate as shall be selected by the Administrative Agent from time to
time in its reasonable discretion (the “XXXXXX Screen Rate) as of 11:00 a.m. London time two
Business Days prior to the commencement of such Interest Period. If the XXXXXX Rate shall be
less than zero, the XXXXXX Rate shall be deemed to be zero for purposes of this agreement.
“Stockholders’ Equity” means, at any date, the amount determined on a
consolidated basis, without duplication, in accordance with GAAP, of stockholders’ equity for
the Borrower and its Subsidiaries at such date.
“Structured Finance Obligations” has the meaning assigned to such term in
Section 5.13.
“Structured Subsidiaries” means:
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(a)a direct or indirect Subsidiary of the Borrower which is formed
(including prior to the Restatement Effective Date) in connection with, and which
continues to exist for the sole purpose of, obtaining and maintaining third-party
financings and which engages in no material activities other than in connection with the
purchase and financing of assets from the Obligors or any other Person, and which is
designated by the Borrower (as provided below), as a Structured Subsidiary, so long as:
(i)no portion of the Indebtedness or any other obligations
(contingent or otherwise) of such Subsidiary (i) is Guaranteed by any Obligor (other than
Guarantees in respect of Standard Securitization Undertakings), (ii) is recourse to or
obligates any Obligor in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property of any Obligor (other than property that has
been contributed or sold or otherwise transferred to such Subsidiary in accordance with
the terms Section 6.03(e) or 6.03(i)), directly or indirectly, contingently or otherwise, to
the satisfaction thereof, other than pursuant to Standard Securitization Undertakings or
any Guarantee thereof;
(ii)no Obligor has any material contract, agreement,
arrangement or understanding with such Subsidiary other than on terms no less favorable
to such Obligor than those that might be obtained at the time from Persons that are not
Affiliates of any Obligor, other than fees payable in the ordinary course of business in
connection with servicing loan assets; and
(iii)no Obligor has any obligation to maintain or preserve such
entity’s financial condition or cause such entity to achieve certain levels of operating
results; and
(b)any passive holding company that is designated by the Borrower
(as provided below) as a Structured Subsidiary, so long as:
(i)such passive holding company is the direct parent of a
Structured Subsidiary referred to in clause (a);
(ii)such passive holding company engages in no activities and
has no assets (other than in connection with the transfer of assets to and from a Structured
Subsidiary referred to in clause (a), and its ownership of all of the Equity Interests of a
Structured Subsidiary referred to in clause (a)) or liabilities;
(iii)all of the Equity Interests of such passive holding company
are owned directly by an Obligor and are pledged as Collateral for the Secured
Obligations and the Collateral Agent has a first-priority perfected Lien (subject to no
other Liens other than Eligible Liens) on such Equity Interests; and
(iv)no Obligor has any obligation to maintain or preserve such
passive holding company’s financial condition or cause such entity to achieve certain
levels of operating results.
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Any designation of a Structured Subsidiary by the Borrower shall be effected
pursuant to a certificate of a Financial Officer delivered to the Administrative Agent, which
certificate shall include a statement to the effect that, to the best of such Financial Officer’s
knowledge, such designation complied with each of the conditions set forth in clause (a) or (b)
above, as applicable.
“Subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than
50% of the general partnership interests are, as of such date, owned, controlled or held, or
(b) that is, as of such date, otherwise Controlled by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent. Anything herein to the
contrary notwithstanding, the term “Subsidiary” shall not include any Person that constitutes an
Investment held by any Obligor in the ordinary course of business and that is not, under GAAP,
consolidated on the financial statements of the Borrower and its Subsidiaries. Unless otherwise
specified, “Subsidiary” means a Subsidiary of the Borrower.
“Subsidiary Guarantor” means any Subsidiary that is or is required to be a
Guarantor under the Guarantee and Security Agreement. It is understood and agreed that,
subject to Section 5.08(a), no CFC, Transparent Subsidiary, Immaterial Subsidiary or Financing
Subsidiary shall be required to be a Subsidiary Guarantor as long as it remains a CFC,
Transparent Subsidiary, Immaterial Subsidiary or Financing Subsidiary, as applicable, each as
defined and described herein.
“Supported QFC” has the meaning set forth in Section 9.18.
“Swedish Krona” and “SEK” refers to the lawful currency of Sweden.
“Swiss Francs” and “CHF” refers to the lawful currency of Switzerland.
“TARGET Day” means any day on which the TARGET2 is open.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET2) payment system (or, if such payment system ceases to be
operative, such other payment system reasonably determined by the Administrative Agent to be a
suitable replacement) for the settlement of payments in Euros.
“Tax Amount” has the meaning assigned to such term in Section 6.05(b).
“Tax Damages” has the meaning assigned to such term in Section 2.15(d).
“Taxes” means any and all present or future taxes levies, imposts, duties,
deductions, withholdings (including backup withholding), assessments, fees or other charges
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imposed by any Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
“Term XXXXX” means,
(a)for any calculation with respect to a Eurocurrency Loan in Canadian
Dollars for any Interest Period, the Term XXXXX Reference Rate for a tenor comparable to the
applicable Interest Period on the day (such day, the “Periodic Term XXXXX Determination
Day”) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is
published by the Term XXXXX Administrator; provided, however, that if as of 5:00 p.m.
(Toronto time) on any Periodic Term XXXXX Determination Day the Term XXXXX Reference
Rate for the applicable tenor has not been published by the Term XXXXX Administrator and a
replacement of the Term XXXXX Reference Rate has not occurred pursuant to Section 2.12(d),
then Xxxx XXXXX will be the Term XXXXX Reference Rate for such tenor as published by the
Term XXXXX Administrator on the first preceding Business Day for which such Term XXXXX
Reference Rate for such tenor was published by the Term XXXXX Administrator so long as such
first preceding Business Day is not more than three (3) Business Days prior to such Periodic
Term XXXXX Determination Day; and
(b)for any calculation with respect to a Loan with a Benchmark equal to the
Canadian Prime Rate on any day, the Term XXXXX Reference Rate for a tenor of one (1) month
on the day (such day, the “Prime Rate XXXXX Determination Day”) that is two (2) Business
Days prior to such day, as such rate is published by the Term XXXXX Administrator; provided,
however, that if as of 5:00 p.m. (Toronto time) on any Prime Rate XXXXX Determination Day
the Term XXXXX Reference Rate for the applicable tenor has not been published by the Term
XXXXX Administrator and a replacement of the Term XXXXX Reference Rate has not occurred
pursuant to Section 2.12(d), then Term XXXXX will be the Term XXXXX Reference Rate for
such tenor as published by the Xxxx XXXXX Administrator on the first preceding Business Day
for which such Term XXXXX Reference Rate for such tenor was published by the Xxxx XXXXX
Administrator so long as such first preceding Business Day is not more than three (3) Business
Days prior to such Prime Rate XXXXX Determination Day.
“Term XXXXX Administrator” means Candeal Benchmark Administration
Services Inc., TSX Inc. (or a successor administrator of the Term XXXXX Reference Rate
selected by the Administrative Agent in its reasonable discretion).
“Term XXXXX Reference Rate” means the forward-looking term rate based on
CORRA.
“Term SOFR” means,
(a)for any calculation with respect to a Term SOFR Loan, the Term SOFR
Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the
“Periodic Term SOFR Determination Day”) 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
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been published by the Term SOFR Administrator and a replacement of the Term SOFR
Reference Rate has not occurred pursuant to Section 2.12(d), 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 an ABR Loan on any day, the Term
SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR
Determination Day”) 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 ABR Term SOFR Determination Day the Term SOFR
Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator
and a replacement of the Term SOFR Reference Rate has not occurred pursuant to Section
2.12(d), 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 ABR SOFR
Determination Day.
“Term SOFR Administrator” means CME Group Benchmark Administration
Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the
Administrative Agent in its reasonable discretion).
“Term SOFR Borrowing” means, as to any Borrowing, the Term SOFR Loans
comprising such Borrowing.
“Term SOFR Loan” means a Loan that bears interest at a rate based on Adjusted
Term SOFR, other than pursuant to clause (d) of the definition of “Alternate Base Rate”.
“Term SOFR Reference Rate” means the forward-looking term rate based on
SOFR.
“Termination Date” means the date on which the Commitments have expired or
been terminated and the principal of and accrued interest on each Loan and all fees and other
amounts payable hereunder by the Borrower or any other Obligor shall have been paid in full
(excluding, for the avoidance of doubt, any amount in connection with any contingent,
unasserted indemnification obligations), all Letters of Credit shall have (w) expired, (x)
terminated, (y) been Cash Collateralized or (z) otherwise been backstopped in a manner
acceptable to the Issuing Bank and the Administrative Agent in their sole discretion and, in each
case, all LC Disbursements then outstanding have been reimbursed.
“Third Party Finance Company” has the meaning assigned to such term in
Section 5.13.
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“Total Eligible Portfolio” has the meaning assigned to such term in
Section 5.13(b).
“Transactions” means the execution, delivery and performance by the Borrower
of this Agreement and other Loan Documents, the borrowing of Loans, and the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.
“Transferable” has the meaning assigned to such term in Section 5.13.
“Transparent Subsidiary” means a Subsidiary classified as a partnership or as a
disregarded entity for U.S. federal income tax purposes directly or indirectly owned by an
Obligor that has no material assets other than Equity Interests (held directly or indirectly through
other Transparent Subsidiaries) in one or more CFCs.
“Two Largest Industry Classification Groups” means, as of any date of
determination, each of the two Industry Classification Groups that a greater portion of the Total
Eligible Portfolio has been assigned to each such Industry Classification Group pursuant to
Section 5.12(a) than any other single Industry Classification Group.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the
rate of interest on such Loan, or on the Loans constituting such Borrowing, is determined by
reference to the Adjusted Eurocurrency Rate, Adjusted Term SOFR, Adjusted Daily Simple RFR
or the Alternate Base Rate.
“UK Financial Institution” means any BRRD Undertaking (as such term is
defined under the PRA Rulebook (as amended from time to time) promulgated by the United
Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA
Handbook (as amended from time to time) promulgated by the United Kingdom Financial
Conduct Authority, which includes certain credit institutions and investment firms, and certain
affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public
administrative authority having responsibility for the resolution of any UK Financial Institution.
“Undisclosed Administration” means, in relation to a Lender or its direct or
indirect parent company, the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official by a supervisory authority or
regulator under or based on the law in the country where such Lender or its direct or indirect
parent company is subject to home jurisdiction supervision if applicable law requires that such
appointment is not to be publicly disclosed and such appointment has not been publicly disclosed
(including, without limitation, under the Dutch Financial Supervision Act 2007 (as amended
from time to time and including any successor legislation)).
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as
in effect from time to time in the State of New York.
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“Unquoted Investments” has the meaning assigned to such term in
Section 5.12(b)(ii)(B).
“Unsecured Longer-Term Indebtedness” means any Indebtedness of an Obligor
that:
(a)has no amortization, or mandatory redemption, repurchase or
prepayment prior to, and a final maturity date not earlier than, six months after the
Maturity Date (it being understood that (i) the conversion features into Permitted Equity
Interests under convertible notes (as well as the triggering of such conversion and/or
settlement thereof solely with Permitted Equity Interests, except in the case of interest,
fractional shares pursuant to customary and market conversion and other provisions or
expenses (which may be payable in cash)) shall not constitute “amortization”,
“redemption”, “repurchase” or “prepayment” for the purposes of this definition and (ii)
that any amortization, mandatory redemption, repurchase or prepayment obligation or put
right that is contingent upon the happening of an event that is not certain to occur
(including, without limitation, a Change in Control or bankruptcy) shall not in and of
itself be deemed to disqualify such Indebtedness under this clause (a) (notwithstanding
the foregoing, in this clause (ii), the Borrower acknowledges that any payment prior to
the Termination Date in respect of any such obligation or right shall only be made to the
extent permitted by Section 6.12)),
(b)is incurred pursuant to documentation containing (i) financial
covenants, covenants governing the borrowing base, if any, covenants regarding portfolio
valuation, and events of default that are no more restrictive in any respect upon the
Borrower and its Subsidiaries, at any time that any Commitments or Loans are
outstanding hereunder (including pursuant to any maturity extensions), than those set
forth in this Agreement (other than, if such Indebtedness is governed by a customary
indenture or similar instrument, events of default that are customary in indentures or
similar instruments and that have no analogous provisions in this Agreement or credit
agreements generally) (provided that, upon the Borrower’s request, this Agreement will
be deemed to be automatically amended (and, upon the request of the Administrative
Agent or the Required Lenders, the Borrower and the Lenders shall enter into a document
evidencing such amendment), mutatis mutandis, to make such covenants more restrictive
in this Agreement as may be necessary to meet the requirements of this clause (b)(i)) (it
being understood that put rights or repurchase or redemption obligations (x) in the case of
convertible securities, in connection with the suspension or delisting of the Equity
Interests of the Borrower or the failure of the Borrower to satisfy a continued listing rule
with respect to its Equity Interests or (y) arising out of circumstances that would
constitute a “fundamental change” (as such term is customarily defined in convertible
note offerings) or an Event of Default shall not be deemed to be more restrictive for
purposes of this definition) and (ii) other terms that are substantially comparable to, or
more favorable to the Borrower than, market terms for substantially similar debt of other
similarly situated borrowers as reasonably determined in good faith by the Borrower, and
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(c)is not secured by any assets of any Person. For the avoidance of
doubt, (a) Unsecured Longer-Term Indebtedness shall also include any refinancing,
refunding, renewal or extension of any Unsecured Longer-Term Indebtedness so long as
such refinanced, refunded, renewed or extended Indebtedness continues to satisfy the
requirements of clause (B) of this definition and (b) any payment on account of
Unsecured Longer-Term Indebtedness shall be subject to Section 6.12.
“Unsecured Shorter-Term Indebtedness” means, collectively, (a) any
Indebtedness of the Borrower or any Subsidiary (other than a Financing Subsidiary) that is not
secured by any assets of any Person and that does not constitute Unsecured Longer-Term
Indebtedness and (b) any Indebtedness for borrowed money of the Borrower or any Subsidiary
(other than a Financing Subsidiary) that is designated as “Unsecured Shorter-Term Indebtedness”
pursuant to Section 6.11. For the avoidance of doubt, Unsecured Shorter-Term Indebtedness
shall also include any refinancing, refunding, renewal or extension of any Unsecured Shorter-
Term Indebtedness so long as such refinanced, refunded, renewed or extended Indebtedness
continues to satisfy the requirements of this definition.
“USA PATRIOT Act” has the meaning assigned to such term in Section 3.21.
“U.S. Government Securities” means securities that are direct obligations of, and
obligations the timely payment of principal and interest on which is fully guaranteed by, the
United States or any agency or instrumentality of the United States the obligations of which are
backed by the full faith and credit of the United States and in the form of conventional bills,
xxxxx, and notes.
“U.S. Government Securities Business Day” means any day except for (i) a
Saturday, (ii) a Sunday or (iii) 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 the purposes of trading in United States government securities.
“U.S. Person” means any Person that is a “United States Person” as defined in
Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes” has the meaning assigned to such term in
Section 9.18.
“Valuation Policy” means the Borrower’s valuation policy as in existence on the
Restatement Effective Date and delivered to the Administrative Agent prior to the Restatement
Effective Date, as may be amended or modified from time to time in a manner consistent with
standard industry practice by a Permitted Policy Amendment.
“Valuation Testing Date” has the meaning assigned to such term in
Section 5.12(b)(iii)(A).
“Value” has the meaning assigned to such term in Section 5.13.
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“wholly owned Subsidiary” of any person shall mean a Subsidiary of such person,
all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other
similar shares required pursuant to applicable law) are owned by such person and/or one or more
wholly owned Subsidiaries of such person. Unless the context otherwise requires, “wholly
owned Subsidiary Guarantor” shall mean a wholly owned Subsidiary that is a Subsidiary
Guarantor.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
“complete withdrawal” or “partial withdrawal” from such Multiemployer Plan, as defined in
Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” means any Obligor and the Administrative Agent.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA
Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority
from time to time under the Bail-In Legislation for the applicable EEA Member Country, which
write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b)
with respect to the United Kingdom, any powers of the applicable Resolution Authority under
the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK
Financial Institution or any contract or instrument under which that liability arises, to convert all
or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of the powers under that
Bail-In Legislation that are related to or ancillary to any of those powers.
SECTION 1.02Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Dollar Loan” or a
“Multicurrency Loan”), by Type (e.g., an “ABR Loan”, an “RFR Loan”, a “Term SOFR Loan”
or a “Eurocurrency Loan”) or by Class and Type (e.g., a “Multicurrency Eurocurrency Loan”).
Borrowings also may be classified and referred to by Class (e.g., a “Dollar Borrowing” or a
“Multicurrency Borrowing”), by Type (e.g., an “ABR Borrowing”, an “RFR Borrowing”, a
“Term SOFR Borrowing” or a “Eurocurrency Borrowing”) or by Class and Type (e.g., a
“Multicurrency Eurocurrency Borrowing”). Loans and Borrowings may also be identified by
Currency.
SECTION 1.03Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, restated, amended and
restated, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or therein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns (subject to any restrictions on
such successors and assigns set forth herein), (c) the words “herein”, “hereof” and “hereunder”,
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29135447.6
and words of similar import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights. Solely for purposes of this Agreement,
any references to “obligations” owed by any Person under any Hedging Agreement shall refer to
the amount that would be required to be paid by such Person if such Hedging Agreement were
terminated at such time (after giving effect to any netting agreement).
SECTION 1.04Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the Restatement Effective Date in GAAP or in
the application or interpretation thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then the Borrower, Administrative
Agent and the Lenders agree to enter into negotiations in good faith in order to amend such
provisions of the Agreement so as to equitably reflect such change to comply with GAAP with
the desired result that the criteria for evaluating the Borrower’s financial condition shall be the
same after such change to comply with GAAP as if such change had not been made; provided,
however, until such amendments to equitably reflect such changes are effective and agreed to by
the Borrower, Administrative Agent and the Required Lenders, the Borrower’s compliance with
such financial covenants shall be determined on the basis of GAAP as in effect and applied
immediately before such change in GAAP becomes effective. Notwithstanding the foregoing or
anything herein to the contrary, the Borrower covenants and agrees with the Lenders that
whether or not the Borrower may at any time adopt Financial Accounting Standard Board
Accounting Standards Codification 825, all determinations relating to fair value accounting for
liabilities or compliance with the terms and conditions of this Agreement shall be made on the
basis that the Borrower has not adopted Accounting Standard Codification 825. In addition,
notwithstanding Accounting Standards Update 2015-03, GAAP or any other matter, for purposes
of calculating any financial or other covenants hereunder, debt issuance costs shall not be
deducted from the related debt obligation. Notwithstanding any other provision contained
herein, the definitions set forth in the Loan Document and any financial calculations required by
the Loan Documents shall be computed to exclude any effects on lease accounting as a result of
ASU No. 2016-02 Leases (Topic 842) (or any other Financial Accounting Standard having a
similar result or effect), regardless of the date enacted, adopted or issued and regardless of any
delayed implementation thereof, and all determinations of Capital Lease Obligations shall be
made consistently therewith (i.e., ignoring any such changes in GAAP pursuant to ASU No.
2016-02 Leases (Topic 842) (or any other Financial Accounting Standard having a similar result
or effect)).
SECTION 1.05Currencies; Currency Equivalents.
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(a)Currencies Generally. At any time, any reference in the definition of the
term “Agreed Foreign Currency” or in any other provision of this Agreement to the Currency of
any particular nation means the lawful currency of such nation at such time whether or not the
name of such Currency is the same as it was on the Restatement Effective Date. Except as
provided in Section 2.09(b) and the last sentence of Section 2.16(a), for purposes of determining
(i) whether the amount of any Multicurrency Borrowing or Letter of Credit then outstanding or to
be borrowed at the same time as such Borrowing would exceed the aggregate amount of
Multicurrency Commitments, (ii) the aggregate unutilized amount of the Multicurrency
Commitments, (iii) the Multicurrency Credit Exposure, (iv) the LC Exposure, (v) the Covered
Debt Amount and (vi) the Borrowing Base or the Value of any Portfolio Investment, the
outstanding principal amount of any Borrowing or Letter of Credit that is denominated in any
Foreign Currency or the Value of any Portfolio Investment that is denominated in any Foreign
Currency shall be deemed to be the Dollar Equivalent of the amount of the Foreign Currency of
such Borrowing, Letter of Credit or Portfolio Investment, as the case may be, determined as of
the date of such Borrowing or Letter of Credit (determined in accordance with the last sentence
of the definition of the term “Interest Period”) or the date of valuation of such Portfolio
Investment, as the case may be; provided that in connection with the delivery of any Borrowing
Base Certificate pursuant to Section 5.01(d) or (e), such amounts shall be determined as of the
date of delivery of such Borrowing Base Certificate. Wherever in this Agreement in connection
with a Borrowing or Loan an amount, such as a required minimum or multiple amount, is
expressed in Dollars, but such Borrowing or Loan is denominated in a Foreign Currency, such
amount shall be the relevant Foreign Currency Equivalent of such Dollar Amount (rounded to
the nearest 1,000 units of such Foreign Currency). Without limiting the generality of the
foregoing, for purposes of determining compliance with any basket in this Agreement, in no
event shall any Obligor be deemed to not be in compliance with any such basket solely as a
result of a change in exchange rates.
(b)Special Provisions Relating to Euro. Each obligation hereunder of any
party hereto that is denominated in the National Currency of a state that is not a Participating
Member State on the Restatement Effective Date shall, effective from the date on which such
state becomes a Participating Member State, be redenominated in Euro in accordance with the
legislation of the European Union applicable to the European Monetary Union; provided that, if
and to the extent that any such legislation provides that any such obligation of any such party
payable within such Participating Member State by crediting an account of the creditor can be
paid by the debtor either in Euros or such National Currency, such party shall be entitled to pay
or repay such amount either in Euros or in such National Currency. If the basis of accrual of
interest or fees expressed in this Agreement with respect to an Agreed Foreign Currency of any
country that becomes a Participating Member State after the date on which such currency
becomes an Agreed Foreign Currency shall be inconsistent with any convention or practice in the
interbank market for the basis of accrual of interest or fees in respect of the Euro, such
convention or practice shall replace such expressed basis effective as of and from the date on
which such state becomes a Participating Member State; provided that, with respect to any
Borrowing denominated in such currency that is outstanding immediately prior to such date, such
replacement shall take effect at the end of the Interest Period therefor.
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Without prejudice to the liabilities of the Borrower to the Lenders and the Lenders
to the Borrower under or pursuant to this Agreement, each provision of this Agreement shall be
subject to such reasonable changes of construction as the Administrative Agent may from time to
time, in consultation with the Borrower, reasonably specify to be necessary or appropriate to
reflect the introduction or changeover to the Euro in any country that becomes a Participating
Member State after the Restatement Effective Date; provided that the Administrative Agent shall
provide the Borrower and the Lenders with prior notice of the proposed change with an
explanation of such change in sufficient time to permit the Borrower and the Lenders an
opportunity to respond to such proposed change.
(c)Exchange Rates; Currency Equivalents. The Administrative Agent or the
Issuing Bank, as applicable, shall determine the Spot Rates as of each Revaluation Date to be
used for calculating Dollar Equivalent amounts of Loans, Letters of Credit and Credit Exposure
denominated in Agreed Foreign Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for purposes of financial
statements delivered pursuant to Section 5.01 or calculating financial covenants hereunder or
except as otherwise provided herein, the applicable amount of any currency (other than Dollars)
for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by
the Administrative Agent or the Issuing Bank, as applicable. Wherever in this Agreement in
connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Loan,
RFR Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a
required minimum or multiple amount, is expressed in Dollars, but such Borrowing,
Eurocurrency Loan, RFR Loan or Letter of Credit is denominated in an Agreed Foreign
Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar amount
(rounded to the nearest unit of such Agreed Foreign Currency, with 0.5 of a unit being rounded
upward).
SECTION 1.06Outstanding Indebtedness. For the avoidance of doubt, to the
extent that any Indebtedness is repaid, redeemed, repurchased, defeased or otherwise retired or
discharged, such Indebtedness shall be deemed to be paid off and not to be outstanding for any
purpose hereunder to the extent of the amount of such repayment, redemption, repurchase,
defeasance, retirement or discharge.
SECTION 1.07Rates; Screen Rate Notification. The Administrative Agent will
promptly notify the Borrower, pursuant to Section 2.12(d), of any change to the reference rate
upon which the interest rate on a Eurocurrency Loan, Term SOFR Loan or RFR Loan is based.
However, the Administrative Agent does not warrant or accept any responsibility for, and shall
not have any liability with respect to, the administration, submission or any other matter related
to the rates in the definition of “Term SOFR,” “Term XXXXX,” “Eurocurrency Rate” or, “Daily
Simple RFR,” “Daily Compounded XXXXX” or with respect to any alternative or successor rate
thereto, or replacement rate thereof (including, without limitation, (i) any such alternative,
successor or replacement rate implemented pursuant to Section 2.12(d), whether upon the
occurrence of a Benchmark Transition Event or an Early Opt-in Election, and (ii) the
implementation of any Benchmark Replacement Conforming Changes pursuant to
Section 2.12(d), including without limitation, whether the composition or characteristics of any
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such alternative, successor or replacement reference rate will be similar to, or produce the same
value or economic equivalence of, the Benchmark being replaced or have the same volume or
liquidity as did the Benchmark being replaced prior to its discontinuance or unavailability.
ARTICLE II.
THE CREDITS
SECTION 2.01The Commitments.
(a)Subject to the terms and conditions set forth herein, each Dollar Lender
severally agrees to make Dollar Loans to the Borrower from time to time during the Availability
Period in an aggregate principal amount that will not result in (a) such Lender’s Dollar Credit
Exposure exceeding such Lender’s Dollar Commitment, (b) the aggregate Dollar Credit
Exposure of all of the Lenders exceeding the aggregate Dollar Commitments or (c) a Borrowing
Base Deficiency.
(b)Subject to the terms and conditions set forth herein, each Multicurrency
Xxxxxx severally agrees to make Multicurrency Loans to the Borrower from time to time during
the Availability Period in an aggregate principal amount that will not result in (a) such Lender’s
Multicurrency Credit Exposure exceeding such Lender’s Multicurrency Commitment, (b) the
aggregate Multicurrency Credit Exposure of all of the Lenders exceeding the aggregate
Multicurrency Commitments or (c) a Borrowing Base Deficiency.
(c)Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Loans.
SECTION 2.02Loans and Borrowings.
(a)Obligations of Lenders. Each Loan shall be made as part of a Borrowing
consisting of Loans of the same Class, Currency and Type made by the Lenders ratably in
accordance with their respective Commitments of the same Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.
(b)Type of Loans. Subject to Section 2.12, each Borrowing of a Class shall
be constituted entirely of ABR Loans, of Term SOFR Loans, of RFR Loans or of Eurocurrency
Loans of such Class denominated in a single Currency as the Borrower may request in
accordance herewith. Each Borrowing denominated in Dollars (including any Pro-Rata
Borrowing) shall be constituted entirely of ABR Loans or Term SOFR Loans. Each Borrowing
denominated in an Agreed Foreign Currency (other than Pounds Sterling or, Swiss Francs or,
following a Benchmark Transition Event with respect to Term XXXXX, Canadian Dollars) shall
be constituted entirely of Eurocurrency Loans. Each Borrowing denominated in Pounds Sterling
or, Swiss Francs or, following a Benchmark Transition Event with respect to Term XXXXX,
Canadian Dollars shall be constituted entirely of RFR Loans. Each Lender at its option may
make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make
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such Loan; provided that (i) any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement and (ii) in
exercising such option, such Lender shall use reasonable efforts to minimize any increased costs
to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take,
or refrain from taking, actions that it determines would result in increased costs for which it will
not be compensated hereunder or that it determines would be otherwise disadvantageous to it and
in the event of such request for costs for which compensation is provided under this Agreement,
the provisions of Section 2.14 shall apply).
(c)Minimum Amounts. Each Borrowing (whether Eurocurrency, Term
SOFR, RFR or ABR) shall be in an aggregate amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof or, with respect to any Agreed Foreign Currency, such smaller
minimum amount as may be agreed to by the Administrative Agent; provided that a Borrowing
of a Class may be in an aggregate amount that is equal to the entire unused balance of the total
Commitments of such Class or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(f). Borrowings of more than one Class, Currency
Type may be outstanding at the same time.
(d)Limitations on Interest Periods. Notwithstanding any other provision of
this Agreement, the Borrower shall not be entitled to request (or to elect to convert to or continue
as a Eurocurrency Borrowing or Term SOFR Borrowing) any Eurocurrency Borrowing or Term
SOFR Borrowing if the Interest Period requested therefor would end after the Maturity Date.
SECTION 2.03Requests for Borrowings.
(a)Notice by the Borrower. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by delivery of a signed Borrowing Request or by
telephone or e-mail (in each case, followed promptly by delivery of a signed Borrowing Request)
(i) in the case of a Term SOFR Borrowing, not later than 12:00 p.m., New York City time, two
(2) U.S. Government Securities Business Days before the date of the proposed Borrowing, (ii) in
the case of (x) an ABR Borrowing not in excess of $50,000,000, not later than 10:00 a.m., New
York City time, on the date of the proposed Borrowing and (y) any other ABR Borrowing, not
later than 12:00 p.m., New York City time, one Business Day before the date of the proposed
Borrowing, (iii) in the case of a Eurocurrency Borrowing, not later than 12:00 p.m., New York
City time, four Business Days before the date of the proposed Borrowing or (iv) in the case of an
RFR Borrowing, not later than 12:00 p.m., New York City time, five (5) Business Days before
the date of the proposed Borrowing. Each such request for a Borrowing shall be irrevocable and
shall be confirmed promptly by hand delivery or by email to the Administrative Agent of a
written Borrowing Request in a form approved by the Administrative Agent and signed by the
Borrower. Notwithstanding the other provisions of this Agreement, in the case of any Borrowing
denominated in Dollars, the Borrower may request that such Borrowing be split into a Dollar
Loan in an aggregate principal amount equal to the Pro-Rata Dollar Portion and a Multicurrency
Loan in an aggregate principal amount equal to the Pro-Rata Multicurrency Portion (any such
Borrowing, a “Pro-Rata Borrowing”). Except as set forth in this Agreement, a Pro-Rata
Borrowing shall be treated as being comprised of two separate Borrowings, a Dollar Borrowing
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under the Dollar Commitments and a Multicurrency Borrowing under the Multicurrency
Commitments.
(b)Content of Borrowing Requests. Each request for a Borrowing (whether a
written Borrowing Request, a telephonic request or e-mail request) shall specify the following
information in compliance with Section 2.02:
(i)whether such Borrowing is to be made under the Dollar Commitments or
the Multicurrency Commitments or is a Pro-Rata Borrowing;
(ii)if such Borrowing is a Pro-Rata Borrowing, the Pro-Rata Dollar Portion
and the Pro-Rata Multicurrency Portion;
(iii)the aggregate amount and Currency of such Borrowing;
(iv)the date of such Borrowing, which shall be a Business Day;
(v)in the case of a Borrowing denominated in Dollars, whether such
Borrowing is to be an ABR Borrowing or a Term SOFR Borrowing;
(vi)in the case of a Eurocurrency Borrowing or a Term SOFR Borrowing, the
Interest Period therefor, which shall be a period contemplated by the definition of the
term “Interest Period” and permitted under Section 2.02(d); and
(vii)the location and number of the Borrower’s account (or such other
account(s) as the Borrower may designate in a written Borrowing Request accompanied
by information reasonably satisfactory to the Administrative Agent as to the identity and
purpose of such other account(s)) to which funds are to be disbursed, which shall comply
with the requirements of Section 2.05.
(c)Notice by the Administrative Agent to the Lenders. Promptly following
receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall
advise each applicable Lender of the details thereof and of the amounts of such Xxxxxx’s Loan to
be made as part of the requested Borrowing.
(d)Failure to Elect. If no election as to the Class of a Borrowing is specified
in a Borrowing Request, then the requested Borrowing shall be denominated in Dollars and shall
be a Pro-Rata Borrowing. If no election as to the Currency of a Borrowing is specified in a
Borrowing Request, then the requested Borrowing shall be denominated in Dollars. If no election
as to the Type of a Borrowing is specified in a Borrowing Request, then the requested Borrowing
shall be a Term SOFR Borrowing having an Interest Period of one month’s duration and if an
Agreed Foreign Currency has been specified, the requested Borrowing shall be a Eurocurrency
Borrowing denominated in such Agreed Foreign Currency having an interest period of one
month’s duration; provided, however, if the specified Agreed Foreign Currency is Pounds
Sterling or, Swiss Francs or, following a Benchmark Transition Event with respect to Term
XXXXX, Canadian Dollars, the requested Borrowings shall be an RFR Borrowing denominated
in Pounds Sterling or, Swiss Francs or Canadian Dollars, as applicable. If a Term SOFR
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Borrowing or a Eurocurrency Borrowing is requested but no Interest Period is specified, the
Borrower shall be deemed to have selected an Interest Period of one month’s duration.
SECTION 2.04Letters of Credit.
(a)General. Subject to the terms and conditions set forth herein, in addition
to the Loans provided for in Section 2.01, the Borrower may request the Issuing Bank to issue,
and the Issuing Bank agrees to issue, at any time and from time to time during the Availability
Period and under the Multicurrency Commitments, Letters of Credit denominated in Dollars or
in any Agreed Foreign Currency for its own account or for the account of its designee (provided
the Obligors shall remain primarily liable to the Lenders hereunder for payment and
reimbursement of all amounts payable in respect of such Letter of Credit hereunder) for the
purposes set forth in Section 5.09 in such form as is acceptable to the Issuing Bank in its
reasonable determination and for the benefit of such named beneficiary or beneficiaries as are
specified by the Borrower. Letters of Credit issued hereunder shall constitute utilization of the
Multicurrency Commitments up to the aggregate amount then available to be drawn thereunder.
(b)Notice of Issuance, Amendment, Renewal or Extension. To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and
the Administrative Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on which such Letter
of Credit is to expire (which shall comply with paragraph (d) of this Section), the amount of such
Letter of Credit, stating that such Letter of Credit is to be issued under the Multicurrency
Commitments, the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare, amend, renew or extend such Letter of Credit. The Administrative
Agent will promptly notify all Multicurrency Lenders following the issuance of any Letter of
Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request for a Letter of
Credit. In the event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(c)Limitations on Amounts. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter
of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the aggregate LC Exposure of the Issuing Bank
(determined for these purposes without giving effect to the participations therein of the Lenders
pursuant to paragraph (e) of this Section) shall not exceed $25,000,000, (ii) the total
Multicurrency Credit Exposures shall not exceed the aggregate Multicurrency Commitment and
(iii) the total Covered Debt Amount shall not exceed the Borrowing Base then in effect.
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(d)Expiration Date. Each Letter of Credit shall expire at or prior to the close
of business on the date twelve months after the date of the issuance of such Letter of Credit (or,
in the case of any renewal or extension thereof, twelve months after the then-current expiration
date of such Letter of Credit, so long as such renewal or extension occurs within three months of
such then-current expiration date); provided that any Letter of Credit with a one-year term may
provide (pursuant to customary “evergreen” provisions) for the renewal thereof for additional
one-year periods; provided, further, that (x) in no event shall any Letter of Credit have an
expiration date that is later than the Revolver Termination Date unless the Borrower (1) Cash
Collateralizes such Letter of Credit on or prior to the date that is two (2) Business Days prior to
the Revolver Termination Date (by reference to the undrawn face amount of such Letter of
Credit) that will remain outstanding as of the close of business on the Revolver Termination Date
and (2) pays in full, on or prior to the Revolver Termination Date, all commissions required to be
paid with respect to any such Letter of Credit through the then-current expiration date of such
Letter of Credit and (y) no Letter of Credit shall have an expiration date after the Maturity Date.
(e)Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) by the Issuing Bank, and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each
Multicurrency Lender, and each Multicurrency Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. Each Multicurrency Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or termination of the
Commitments, provided that no Multicurrency Lender shall be required to purchase a
participation in a Letter of Credit pursuant to this Section 2.04(e) if (x) the conditions set forth in
Section 4.02 would not be satisfied in respect of a Borrowing at the time such Letter of Credit
was issued and (y) the Required Multicurrency Lenders shall have so notified the Issuing Bank in
writing and shall not have subsequently determined that the circumstances giving rise to such
conditions not being satisfied no longer exist.
In consideration and in furtherance of the foregoing, each Multicurrency Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for account of
the Issuing Bank, such Lender’s Applicable Multicurrency Percentage of each LC Disbursement
made by the Issuing Bank in respect of Letters of Credit promptly upon the request of the Issuing
Bank at any time from the time of such LC Disbursement until such LC Disbursement is
reimbursed by the Borrower or at any time after any reimbursement payment is required to be
refunded to the Borrower for any reason. Such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each such payment shall be made in the same
manner as provided in Section 2.05 with respect to Loans made by such Xxxxxx (and
Section 2.05 shall apply, mutatis mutandis, to the payment obligations of the Multicurrency
Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Multicurrency Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to paragraph (f), the
Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that the
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Multicurrency Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment
made by a Multicurrency Lender pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f)Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse the Issuing Bank in respect of such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 p.m., New York City time, on (i) the Business Day that the
Borrower receives notice of such LC Disbursement, if such notice is received prior to 10:00 a.m.,
New York City time, or (ii) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time, provided that, if such LC
Disbursement is not less than $1,000,000, the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 that such payment be
financed with a Term SOFR Borrowing or a Eurocurrency Borrowing having an Interest Period
of one month’s duration or an RFR Borrowing in an equivalent amount and, to the extent so
financed, the Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting Term SOFR Borrowing or Eurocurrency Borrowing having an Interest Period of
one month’s duration or an RFR Borrowing, as applicable.
If the Borrower fails to make such payment when due, the Administrative Agent
shall notify each applicable Lender of the applicable LC Disbursement, the payment then due
from the Borrower in respect thereof and such Lender’s Applicable Multicurrency Percentage
thereof.
(g)Obligations Absolute. The Borrower’s obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or other document that does not comply
strictly with the terms of such Letter of Credit, and (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the Borrower’s obligations hereunder.
None of the Administrative Agent, the Lenders, the Issuing Bank, or any of their
respective Related Parties, shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit by the Issuing Bank or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
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provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank’s gross negligence or willful
misconduct when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that:
(i)the Issuing Bank may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit without responsibility for
further investigation, regardless of any notice or information to the contrary, and may
make payment upon presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit;
(ii)the Issuing Bank shall have the right, in its sole discretion, to decline to
accept such documents and to make such payment if such documents are not in strict
compliance with the terms of such Letter of Credit; and
(iii)this sentence shall establish the standard of care to be exercised by the
Issuing Bank when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to
the extent permitted by applicable law, any standard of care inconsistent with the
foregoing).
(h)Disbursement Procedures. The Issuing Bank shall, within a reasonable
time following its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly after such examination notify
the Administrative Agent and the Borrower by telephone (confirmed by telecopy or by email) of
such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving such notice shall
not relieve the Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement.
(i)Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to Term SOFR Loans
having an Interest Period of one month’s duration (or, if such LC Disbursement is denominated
in an Agreed Foreign Currency (other than Pounds Sterling or, Swiss Francs or, following a
Benchmark Transition Event with respect to Term XXXXX, Canadian Dollars), the rate per
annum then applicable to a Eurocurrency Loan having an Interest Period of one month’s duration
for the applicable Currency or, if such LC Disbursement is denominated in Pounds Sterling or,
Swiss Francs or, following a Benchmark Transition Event with respect to Term XXXXX,
Canadian Dollars, the rate per annum then applicable to RFR Loans for the applicable Currency);
provided that, if the Borrower fails to reimburse such LC Disbursement within two Business
Days following the date when due pursuant to paragraph (f) of this Section, then the provisions
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of Section 2.11(d) shall apply. Interest accrued pursuant to this paragraph shall be for account of
the Issuing Bank, except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (f) of this Section to reimburse the Issuing Bank shall be for account of
such Lender to the extent of such payment.
(j)Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Borrower, the Administrative Agent, the replaced
Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders
of any such replacement of the Issuing Bank. In addition to the foregoing, if a Lender becomes,
and during the period in which it remains, a Defaulting Lender, and any Default has arisen from
a failure of the Borrower to comply with Section 2.17(c), then the Issuing Bank may, upon prior
written notice to the Borrower and the Administrative Agent, resign as Issuing Bank, effective at
the close of business New York City time on a date specified in such notice (which date may not
be less than five (5) Business Days after the date of such notice). On or after the effective date of
any such resignation, the Borrower and the Administrative Agent may, by written agreement,
appoint a successor Issuing Bank. The Administrative Agent shall notify the Lenders of any
such replacement of the Issuing Bank. At the time any such replacement under any of the
foregoing circumstances shall become effective, the Borrower shall pay all unpaid fees accrued
for account of the replaced Issuing Bank pursuant to Section 2.10(b). From and after the
effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be
deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the replacement of the Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(k)Cash Collateralization. If the Borrower shall be required or shall elect, as
the case may be, to provide cover for LC Exposure pursuant to Section 2.04(d), Section 2.09(b),
Section 2.17(c)(ii) or the last paragraph of Article VII, the Borrower shall immediately Cash
Collateralize such LC Exposure. Such Cash Collateral shall be held by the Administrative Agent
in the first instance as collateral for LC Exposure under this Agreement and thereafter for the
payment of the “Secured Obligations” as defined in the Guarantee and Security Agreement, and
for these purposes the Borrower hereby grants a security interest to the Administrative Agent for
the benefit of the Issuing Bank and the Lenders in the Letter of Credit Collateral Account and in
any financial assets (as defined in the Uniform Commercial Code) or other property held therein.
SECTION 2.05Funding of Borrowings.
(a)Funding by Xxxxxxx. Each Lender shall make each Loan to be made by it
xxxxxxxxx on the proposed date thereof by wire transfer of immediately available funds by
1:00 p.m., New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so received, in like
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funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing
Request; provided that Borrowings made to finance the reimbursement of an LC Disbursement
as provided in Section 2.04(f) shall be remitted by the Administrative Agent to the Issuing Bank.
(b)Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that
such Lender will not make available to the Administrative Agent such Xxxxxx’s share of such
Borrowing, the Administrative Agent may assume that such Xxxxxx has made such share
available on such date in accordance with paragraph (a) of this Section and, in reliance upon such
assumption, the Administrative Agent may (in its sole discretion and without any obligation to
do so) make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount in the corresponding Currency with interest
thereon, for each day from and including the date such amount is made available to the Borrower
to but excluding the date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation from
time to time in effect and (ii) in the case of the Borrower, (x) with respect to Eurocurrency
Borrowings, the interest rate applicable to Eurocurrency Loans denominated in such Currency
having an Interest Period of one month’s duration, (y) with respect to Term SOFR Borrowings,
the interest rate applicable to Term SOFR Loans having an Interest Period of one month’s
duration and (z) with respect to Borrowings denominated in Pounds Sterling or, Swiss Francs or,
following a Benchmark Transition Event with respect to Term XXXXX, Canadian Dollars, the
interest rate applicable to RFR Loans denominated in such Currency, as applicable. If such
Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Xxxxxx’s Loan included in such Borrowing. Nothing in this paragraph shall relieve any Lender
of its obligation to fulfill its commitments hereunder, and shall be without prejudice to any claim
the Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.
SECTION 2.06Interest Elections.
(a)Elections by the Borrower for Borrowings. Subject to Section 2.03(d), the
Loans constituting each Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Term SOFR Borrowing or a Eurocurrency Borrowing,
shall have the Interest Period specified in such Borrowing Request. Thereafter, subject to
Section 2.06(e), the Borrower may elect to convert such Borrowing to a Borrowing of a different
Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a Term
SOFR Borrowing or a Eurocurrency Borrowing, may elect the Interest Period therefor, all as
provided in this Section; provided, however that (i) a Borrowing of a Class may only be
continued or converted into a Borrowing of the same Class, (ii) a Borrowing denominated in one
Currency may not be continued as, or converted into, a Borrowing in a different Currency,
(iii) no Eurocurrency Borrowing denominated in a Foreign Currency may be continued if, after
giving effect thereto, the aggregate Multicurrency Credit Exposures would exceed the aggregate
Multicurrency Commitments and (iv) a Eurocurrency Borrowing denominated in a Foreign
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Currency may not be converted into a Borrowing of a different Type. The Borrower may elect
different options with respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders of the respective Class holding the
Loans constituting such Borrowing, and the Loans constituting each such portion shall be
considered a separate Borrowing.
(b)Notice of Elections. To make an election pursuant to this Section, the
Xxxxxxxx shall notify the Administrative Agent of such election by delivery of a signed Interest
Election Request in a form approved by the Administrative Agent or by telephone (followed
promptly, but no later than the close of business on the date of such request, by a signed Interest
Election Request in a form approved by the Administrative Agent) by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of
the Type resulting from such election to be made on the effective date of such election. Each
such Interest Election Request shall be irrevocable.
(c)Content of Interest Election Requests. Each telephonic and written
Interest Election Request shall specify the following information in compliance with
Section 2.02:
(i)the Borrowing (including the Class) to which such Interest Election
Request applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv) of this
paragraph shall be specified for each resulting Borrowing);
(ii)the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii)in the case of a Borrowing denominated in Dollars, whether the resulting
Borrowing is to be an ABR Borrowing or a Term SOFR Borrowing; and
(iv)if the resulting Borrowing is a Term SOFR Borrowing or a Eurocurrency
Borrowing, the Interest Period therefor after giving effect to such election, which shall be
a period contemplated by the definition of the term “Interest Period” and permitted under
Section 2.02(d).
(d)Notice by the Administrative Agent to the Lenders. Promptly following
receipt of an Interest Election Request, the Administrative Agent shall advise each applicable
Lender of the details thereof and of such Xxxxxx’s portion of each resulting Borrowing.
(e)Failure to Elect; Events of Default. If the Borrower fails to deliver a
timely and complete Interest Election Request with respect to a Term SOFR Borrowing or a
Eurocurrency Borrowing prior to the end of the Interest Period therefor, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the Administrative Agent, at the request of
the Required Xxxxxxx, so notifies the Borrower, then, so long as such Event of Default is
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continuing, (i) any outstanding Term SOFR Borrowing shall, at the end of the applicable Interest
Period for such Term SOFR Borrowing be converted to an ABR Borrowing and (ii) no
outstanding Eurocurrency Borrowing may have an Interest Period of more than one month’s
duration.
SECTION 2.07Termination, Reduction or Increase of the Commitments.
(a)Scheduled Termination. Unless previously terminated in accordance with
the terms of this Agreement, on the Revolver Termination Date the Commitments shall
automatically be reduced to an amount equal to the aggregate principal amount of the Loans and
LC Exposure of all Lenders outstanding on the Revolver Termination Date and thereafter to an
amount equal to the aggregate principal amount of the Loans and LC Exposure outstanding after
giving effect to each payment of principal and each expiration or termination of a Letter of
Credit hereunder; provided that, for clarity, except as expressly provided for herein (including,
without limitation, Section 2.04(e)), no Lender shall have any obligation to make new Loans or
to issue, amend or renew an existing Letter of Credit on or after the Revolver Termination Date,
and Loans outstanding on the Revolver Termination Date shall be due and payable on the
Maturity Date in accordance with Section 2.08.
(b)Voluntary Termination or Reduction. The Borrower may at any time
terminate, or from time to time reduce, the Commitments ratably among each Class; provided
that (i) each reduction of the Commitments pursuant to this Section 2.07(b) shall be in a
minimum amount of at least $5,000,000 (or an amount less than $1,000,000 if the Commitments
are being reduced to zero) and (ii) the Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans of any Class in accordance with
Section 2.09, the total Credit Exposures of such Class would exceed the total Commitments of
such Class.
(c)Notice of Voluntary Termination or Reduction. The Borrower shall notify
the Administrative Agent of any election to terminate or reduce the Commitments under
paragraph (b) of this Section at least three (3) Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the applicable Lenders of
the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments of a Class delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other events, in
which case such notice may be revoked by the Borrower (by notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied.
(d)Effect of Termination or Reduction. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments of a Class shall be made
ratably among the Lenders in accordance with their respective Commitments of such Class.
(e)Increase of the Commitments.
(i)Requests for Increase by Borrower. The Borrower shall have the right, at
any time after the Restatement Effective Date but prior to the Revolver Termination Date,
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to propose that the Commitments of a Class hereunder be increased (each such proposed
increase being a “Commitment Increase”) by notice to the Administrative Agent
specifying each existing Lender (each an “Increasing Lender”) and/or each additional
lender (each an “Assuming Lender”) that shall have agreed to an additional Commitment
and the date on which such increase is to be effective (the “Commitment Increase Date”),
which date shall be a Business Day at least three Business Days (or such lesser period as
the Administrative Agent may reasonably agree) after delivery of such notice and at least
thirty (30) days prior to the Revolver Termination Date; provided that, subject to the
foregoing, each Commitment Increase shall become effective only upon satisfaction of
the following conditions:
(A)the minimum amount of the Commitment of any Assuming
Lender, and the minimum amount of the increase of the Commitment of any
Increasing Lender, as part of such Commitment Increase shall be $5,000,000 or a
larger multiple of $1,000,000 in excess thereof (or, in each case, in such other
amounts as agreed by the Administrative Agent);
(B)immediately after giving effect to such Commitment Increase, the
total Commitments of all of the Lenders hereunder shall not exceed
$800,000,000;
(C)each Assuming Lender and the Commitment Increase shall be
consented to by the Administrative Agent and the Issuing Bank (which consent
shall not be unreasonably withheld or delayed);
(D)no Default or Event of Default shall have occurred and be
continuing on such Commitment Increase Date or shall result from the proposed
Commitment Increase; and
(E)the representations and warranties contained in this Agreement and
the other Loan Documents shall be true and correct in all material respects (other
than any representation or warranty already qualified by materiality or Material
Adverse Effect, which shall be true and correct in all respects) on and as of the
Commitment Increase Date 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).
For the avoidance of doubt, no Lender shall be obligated to agree to an increased
Commitment requested by the Borrower pursuant to this Section 2.07(e).
(ii)Effectiveness of Commitment Increase by Borrower. On the Commitment
Increase Date for any Commitment Increase, each Assuming Lender, if any, providing a
Commitment as part of such Commitment Increase shall become a Lender hereunder as
of such Commitment Increase Date with a Commitment in the amount set forth in the
agreement referred to in Section 2.07(e)(ii)(y) and the Commitment of each Increasing
Lender, if any, increasing its Commitment as part of such Commitment Increase shall be
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increased as of such Commitment Increase Date to the amount set forth in the agreement
referred to in Section 2.07(e)(ii)(y); provided that:
(x)the Administrative Agent shall have received on or prior to 12:00
p.m., New York City time, on such Commitment Increase Date a certificate of a
duly authorized officer of the Borrower stating that each of the applicable
conditions to such Commitment Increase set forth in the foregoing paragraph
(i) has been satisfied; and
(y)each Assuming Lender and/or Increasing Lender providing or
increasing a Commitment, respectively, as part of such Commitment Increase
shall have delivered to the Administrative Agent, on or prior to 12:00 p.m.,
New York City time on such Commitment Increase Date, an agreement, duly
executed by each such Assuming Lender and/or Increasing Lender, as applicable,
and the Borrower, in form and substance reasonably satisfactory to the
Administrative Agent and acknowledged by the Administrative Agent, pursuant
to which each such Assuming Lender and/or Increasing Lender shall, effective as
of such Commitment Increase Date, provide or increase its Commitment of the
applicable Class, respectively.
Promptly following satisfaction of such conditions, the Administrative Agent shall notify
the Lenders (including any Assuming Lenders) thereof and of the occurrence of the
Commitment Increase Date by facsimile transmission or electronic messaging system.
(iii)Recordation into Register. Upon its receipt of an agreement referred to in
clause (ii)(y) above executed by each Assuming Lender and/or each Increasing Lender
providing or increasing a Commitment, respectively, as part of such Commitment
Increase, together with the certificate referred to in clause (ii)(x) above, the
Administrative Agent shall, if such agreement referred to in clause (ii)(y) has been
completed, (x) accept such agreement, (y) record the information contained therein in the
Register and (z) give prompt notice thereof to the Borrower.
(iv)Adjustments of Borrowings upon Effectiveness of Increase. On each
Commitment Increase Date, the Borrower shall (A) prepay the outstanding Loans of the
affected Class (if any) in full, (B) simultaneously borrow new Loans of such Class
hereunder in an amount equal to such prepayment; provided that with respect to
subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender
may be effected by book entry to the extent that any portion of the amount prepaid to
such Lender will be subsequently borrowed from such Lender and (y) the existing
Lenders, the Increasing Lenders and the Assuming Lenders shall make and receive
payments among themselves, in a manner acceptable to the Administrative Agent, so that,
after giving effect thereto, the Loans are held ratably by the Lenders of such Class in
accordance with the respective Commitments of such Class of such Lenders (after giving
effect to such Commitment Increase) and (C) pay to the Lenders of such Class the
amounts, if any, payable under Section 2.14 as a result of any such prepayment.
Notwithstanding the foregoing, unless otherwise consented in writing by the Borrower,
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no Commitment Increase Date shall occur on any day other than the last day of an
Interest Period. Concurrently therewith, the Lenders with Multicurrency Commitments
shall be deemed to have adjusted their participation interests in any outstanding Letters of
Credit so that such interests are held ratably in accordance with their Multicurrency
Commitments as so increased. The Administrative Agent shall amend Schedule 1.01(b)
to reflect the aggregate amount of each Lender’s Commitments (including Increasing
Lenders and Assuming Lenders). Each reference to Schedule 1.01(b) in this Agreement
shall be to Schedule 1.01(b) as amended pursuant to this Section.
(v)Terms of Loans issued on the Commitment Increase Date. For the
avoidance of doubt, the terms and provisions of any new Loans issued by any Assuming
Lender or Increasing Lender, and the Commitment Increase of any Assuming Lender or
Increasing Lender, shall be identical to terms and provisions of the Loans issued by, and
the Commitments of, the Lenders immediately prior to the applicable Commitment
Increase Date.
SECTION 2.08Repayment of Loans; Evidence of Debt.
(a)Repayment. Subject to, and in accordance with, the terms of this
Agreement, the Borrower hereby unconditionally promises to pay to the Administrative Agent
for account of the Lenders the outstanding principal amount of each Class of Loans and all other
amounts due and owing hereunder and under the other Loan Documents on the Maturity Date.
(b)Manner of Payment. Prior to any repayment or prepayment of any
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be paid and
shall notify the Administrative Agent by telephone (confirmed by telecopy or e-mail) of such
selection not later than the time set forth in Section 2.09(g) prior to the scheduled date of such
repayment. Subject to Section 2.09 and to the proviso to Section 2.16(c), if the repayment or
prepayment is denominated in Dollars and the Class to be repaid or prepaid is specified (or if no
Class is specified and there is only one Class of Loans with Borrowings in Dollars outstanding),
such repayment or prepayment shall be applied ratably between or among, as applicable, the
Loans of such Class (based on the outstanding principal amount of such Loans), in each case first
to repay or prepay any outstanding ABR Borrowings of such Loans and second to repay or
prepay the remaining Borrowings denominated in Dollars of such Loans, if applicable, in the
order of the remaining duration of their respective Interest Period (the Borrowing with the
shortest remaining Interest period to be repaid or prepaid first). Subject to Section 2.09 and to
the proviso to Section 2.16(c), if the repayment or prepayment is denominated in Dollars and the
Class to be repaid or prepaid is not specified, such repayment or prepayment shall be applied (i)
ratably between or among, as applicable, the Dollar denominated Loans of the Multicurrency
Lenders (based on the then outstanding principal amounts of such Dollar denominated Loans), in
each case (x) first to repay or prepay any outstanding ABR Borrowings of the Multicurrency
Lenders, and (y) then second to repay or prepay the remaining Borrowings denominated in
Dollars of the Multicurrency Lenders, if applicable, in the order in the order of the remaining
duration of their respective Interest Periods (the Borrowings with the shortest remaining Interest
Periods to be repaid first), and (ii) once the outstanding principal amount of all Dollar
denominated Loans of the Multicurrency Lenders is paid in full, ratably between or among, as
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applicable, the Loans of the Dollar Lenders (based on the then outstanding principal amount of
such Loans), in each case (x) first to repay or prepay any outstanding ABR Borrowings of the
Dollar Lenders and (y) then second to repay or prepay the remaining Borrowings of the Dollar
Lenders, if applicable, in order of the remaining duration of their respective Interest Periods (the
Borrowings with the shortest remaining Interest Period to be repaid first). Subject to
Section 2.09 and to the proviso Section 2.16(c), if the repayment or prepayment is denominated
in a particular Agreed Foreign Currency, such repayment or prepayment shall be applied ratably
between or among, as applicable, any remaining Borrowings denominated in such Agreed
Foreign Currency (based on the then outstanding principal amount of such Loans), in each case
in the order of the remaining duration of their respective Interest Periods (the Borrowing with the
shortest remaining Interest Period to be repaid first). Each payment specified as a payment on
account of the Pro-Rata Borrowings shall be applied ratably between the Dollar Loans and the
Multicurrency Loans (based on the then outstanding principal amount of such Loans), in each
case, if applicable, in the order of the remaining duration of their respective Interest Periods (the
Borrowing with the shortest remaining Interest Period to be repaid first). Each payment of a
Borrowing of a Class shall be applied ratably to the Loans of such Class included in such
Borrowing.
(c)Maintenance of Records by Xxxxxxx. Each Lender shall maintain in
accordance with its usual practice records evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts and Currency of
principal and interest payable and paid to such Xxxxxx from time to time hereunder.
(d)Maintenance of Records by the Administrative Agent. The Administrative
Agent shall maintain records in which it shall record (i) the amount of each Loan made
hereunder, the Type thereof and, if applicable, each Interest Period therefor, (ii) the amount of
any principal or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for account of the Lenders with respect to each Loan and each Xxxxxx’s share thereof.
(e)Effect of Entries. The entries made in the records maintained pursuant to
paragraph (c) or (d) of this Section shall be prima facie evidence, absent manifest error, of the
existence and amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such records or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of
this Agreement. In the event of any conflict between the accounts and records maintained by any
Xxxxxx and the accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.
(f)Promissory Notes. Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to
such Lender and its permitted registered assigns) and in a form attached hereto as Exhibit C.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or more promissory
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notes in such form payable to the payee named therein (or, if such promissory note is a registered
note, to such payee and its permitted registered assigns).
SECTION 2.09Prepayment of Loans.
(a)Optional Prepayments. The Borrower shall have the right at any time and
from time to time (but subject to Section 2.09(g)) to prepay any Borrowing in whole or in part,
without premium or fee (but subject to Section 2.14), subject to the requirements of this Section.
Each prepayment in part under this Section 2.09(a) shall be in a minimum amount of $5,000,000
or a larger multiple of $1,000,000 (or such lesser amount as is then outstanding).
(b)Mandatory Prepayments due to Changes in Exchange Rates.
(i)Determination of Amount Outstanding. On each Quarterly Date and, in
addition, promptly upon the receipt by the Administrative Agent of a Currency Valuation
Notice (as defined below), the Administrative Agent shall determine the aggregate
Multicurrency Credit Exposure. For the purpose of this determination, the outstanding
principal amount of any Loan or LC Exposure that is denominated in any Foreign
Currency shall be deemed to be the Dollar Equivalent of the amount in the Foreign
Currency of such Loan or LC Exposure, determined as of such Quarterly Date or, in the
case of a Currency Valuation Notice received by the Administrative Agent prior to 11:00
a.m., New York City time, on a Business Day, on such Business Day or, in the case of a
Currency Valuation Notice otherwise received, on the first Business Day after such
Currency Valuation Notice is received. Upon making such determination, the
Administrative Agent shall promptly notify the Multicurrency Lenders and the applicable
Borrower thereof.
(ii)Prepayment. If, on the date of such determination, the aggregate
Multicurrency Credit Exposure minus the Cash Collateralized LC Exposure
exceeds 105% of the aggregate amount of the Multicurrency Commitments then in effect,
the Borrower shall prepay the Multicurrency Loans (and/or Cash Collateralize LC
Exposure as contemplated by Section 2.04(k)) within 15 Business Days following such
date of determination in such aggregate amounts as shall be necessary so that after giving
effect thereto the aggregate Multicurrency Credit Exposure does not exceed the
Multicurrency Commitments.
For purposes hereof, “Currency Valuation Notice” means a notice given by the Required
Multicurrency Lenders to the Administrative Agent stating that such notice is a “Currency
Valuation Notice” and requesting that the Administrative Agent determine the aggregate
Multicurrency Credit Exposure. The Administrative Agent shall not be required to make more
than one valuation determination pursuant to Currency Valuation Notices within any rolling
three month period.
Any prepayment made pursuant to this paragraph shall be applied first, to the Multicurrency
Loans outstanding and second, as cover for LC Exposure.
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(c)Mandatory Prepayments due to Borrowing Base Deficiency. In the event
that (i) the amount of the total Dollar Credit Exposure exceeds the total Dollar Commitments
and/or (ii) the amount of the total Multicurrency Credit Exposure exceeds the total Multicurrency
Commitments (other than as a result of a change in exchange rates pursuant to Section 2.09(b)),
the Borrower shall prepay Loans (and/or Cash Collateralize Letters of Credit as contemplated by
Section 2.04(k)) in such amounts as shall be necessary so that (x) in the case of clause (i), the
amount of total Dollar Credit Exposure does not exceed the total Dollar Commitments and (y) in
the case of clause (ii), the amount of total Multicurrency Credit Exposure does not exceed the
total Multicurrency Commitments. In the event that at any time any Borrowing Base Deficiency
shall exist, promptly (but in no event later than 5 Business Days), the Borrower shall either
prepay (x) the Loans (and/or Cash Collateralize Letters of Credit as contemplated by
Section 2.04(k)) so that the Borrowing Base Deficiency is promptly cured or (y) the Loans and
the Other Covered Indebtedness in such amounts as shall be necessary so that such Borrowing
Base Deficiency is promptly cured; provided, that as among the Loans (and Letters of Credit) on
the one hand and the Other Covered Indebtedness on the other hand, such prepayment shall be at
least ratable (based on the outstanding principal amount of such Indebtedness) as to payments of
Loans (and Letters of Credit) in relation to Other Covered Indebtedness); provided, that if within
such 5 Business Day period, the Borrower shall present to the Administrative Agent a reasonably
feasible plan, which plan is reasonably satisfactory to the Administrative Agent, that will enable
any such Borrowing Base Deficiency to be cured within 30 Business Days of the occurrence of
such Borrowing Base Deficiency (which 30-Business Day period shall include the 5 Business
Days permitted for delivery of such plan), then such prepayment or reduction shall be effected in
accordance with such plan (subject, for the avoidance of doubt, to the limitations as to the
allocation of such prepayments set forth above in this Section 2.09(b)). Notwithstanding the
foregoing, the Borrower shall pay interest in accordance with Section 2.11(d) for so long as the
Covered Debt Amount exceeds the Borrowing Base during such 30-Business Day period. For
clarity, in the event that the Borrowing Base Deficiency is not cured prior to the end of such 5-
Business Day period (or, if applicable, such 30-Business Day period), it shall constitute an Event
of Default under clause (a) of Article VII.
(d)Mandatory Prepayments due to Certain Events Following Availability
Period. Subject to Section 2.09(e):
(i)Asset Sales. In the event that any Obligor shall receive any Net Asset Sale
Proceeds at any time after the Availability Period, the Borrower shall, no later than the
third Business Day following the receipt of such Net Asset Sale Proceeds, prepay the
Loans in an amount equal to such Net Asset Sale Proceeds (and the Commitments shall
be permanently reduced by such amount); provided, that with respect to Asset Sales of
assets that are not Portfolio Investments, the Borrower shall not be required to prepay the
Loans unless and until (and to the extent that) the aggregate Net Asset Sale Proceeds
relating to all such Asset Sales are greater than $2,000,000.
(ii)Returns of Capital. In the event that any Obligor shall receive any Net
Return of Capital at any time after the Availability Period, the Borrower shall, no later
than the third Business Day following the receipt of such Net Return of Capital, prepay
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the Loans in an amount equal to 100% of such Net Return of Capital (and the
Commitments shall be permanently reduced by such amount).
(iii)Equity Issuances. In the event that the Borrower shall receive any Cash
proceeds from the issuance of Equity Interests (other than pursuant to any dividend
reinvestment plan) of the Borrower at any time after the Availability Period, the
Borrower shall, no later than the third Business Day following the receipt of such Cash
proceeds, prepay the Loans in an amount equal to 75% of such Cash proceeds, net of
underwriting discounts and commissions or other similar payments and other reasonable
costs, fees, premiums and expenses directly associated therewith, including, without
limitation, reasonable legal fees and expenses, (and the Commitments shall be
permanently reduced by such amount).
(iv)Indebtedness. In the event that any Obligor shall receive any Cash
proceeds from the issuance of Indebtedness (excluding Hedging Agreements permitted
by Section 6.01 and other Indebtedness permitted by Section 6.01(a), (d), (e), (f), (g), (h)
and (j)) at any time after the Availability Period, such Obligor shall, no later than the
third Business Day following the receipt of such Cash proceeds, prepay the Loans in an
amount equal to 100% of such Cash proceeds, net of underwriting discounts and
commissions or other similar payments and other reasonable costs, fees, commissions,
premiums and expenses directly associated therewith, including, without limitation,
reasonable legal fees and expenses (and the Commitments shall be permanently reduced
by such amount).
(e)Mandatory Prepayment of Term SOFR and Eurocurrency Loans. If the
Loans to be prepaid pursuant to Section 2.09(d)(ii) are Term SOFR Loans or Eurocurrency
Loans, the Borrower may defer such prepayment (and permanent Commitment reduction) until
the last day of the Interest Period applicable to such Loans, so long as the Borrower deposits an
amount equal to an amount required to be prepaid, no later than the third Business Day following
the receipt of such amount, into a segregated collateral account in the name and under the
dominion and control (within the meaning of Section 9-104 of the Uniform Commercial Code)
of the Administrative Agent pending application of such amount to the prepayment of the Loans
(and permanent reduction of the Commitments) on the last day of such Interest Period.
(f)Payments Following Availability Period or During an Event of Default.
Notwithstanding any provision to the contrary in Section 2.08 or this Section 2.09 or otherwise
herein, following the end of the Availability Period (with respect to clauses (i) and (ii)) or
following the occurrence and during the continuance of an Event of Default (with respect to
clause (iii)):
(i)No optional prepayment of the Loans made of any Class shall be permitted
unless at such time, the Borrower also prepays its Loans of the other Class or, in the case
of a prepayment of Dollar Loans and to the extent no Multicurrency Loans are
outstanding, provides Cash Collateral as contemplated by Section 2.04(k) for the
outstanding Letters of Credit, which prepayment (and Cash Collateral) shall be made on a
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pro-rata basis (based on the outstanding principal amounts of such Indebtedness) between
each outstanding Class of Credit Exposure;
(ii)any prepayment of Loans in Dollars required to be made in connection
with any of the events specified in Section 2.09(d) shall be applied ratably between the
Dollar Lenders and the Multicurrency Lenders based on the then outstanding principal
amounts of Loans denominated in Dollars; provided, that, so long as no Event of Default
has occurred and is continuing, each prepayment in an Agreed Foreign Currency
(including as a result of the Borrower’s receipt of proceeds from a prepayment event in
such Agreed Foreign Currency (it being the understanding that any receipt of proceeds in
an Agreed Foreign Currency shall first be used to make a payment on account of the
Loans denominated in such Agreed Foreign Currency)) shall be applied ratably among
just the Multicurrency Lenders to prepay the Loans denominated in such Agreed Foreign
Currency and, if after such payment, if applicable, or otherwise, the balance of the Loans
denominated in such Agreed Foreign Currency remaining is zero, then, if there are any
remaining proceeds, the Borrower shall prepay (in Dollars) the remaining Loans on a pro
rata basis (based on the aggregate outstanding Dollar Equivalent principal amount of such
Loans) between each outstanding Class of Loans; and
(iii)Notwithstanding any other provision to the contrary in this Agreement, if
an Event of Default has occurred and is continuing, then any payment or repayment of
the Loans shall be made and applied ratably (based on the aggregate Dollar Equivalents
of the outstanding principal amounts of such Loans) between Dollar Loans,
Multicurrency Loans and Letters of Credit.
(g)Notices, Etc. The Borrower shall notify the Administrative Agent in
writing or by telephone (followed promptly by written confirmation) of any prepayment
hereunder (i) in the case of a prepayment of a Term SOFR Borrowing under Section 2.09(a), not
later than 12:00 p.m., New York City time, three (3) U.S. Government Securities Business Days
before the date of such prepayment, (ii) in the case of a prepayment of a Eurocurrency
Borrowing under Section 2.09(a), not later than 12:00 p.m., New York City time, three (3)
Business Days before the date of prepayment, (iii) in the case of repayment or prepayment of an
RFR Borrowing under Section 2.09(a), not later than 12:00 p.m., New York City time, five (5)
Business Days before the date of repayment or prepayment, (iv) in the case of prepayment of an
ABR Borrowing under Section 2.09(a), or in the case of any prepayment under Section 2.09(b),
(c), or (d), not later than 12:00 p.m., New York City time, on the Business Day of prepayment, or
(v) in each case of the notice periods described in clauses (i), (ii), (iii) and (iv), such lesser period
as the Administrative Agent may reasonably agree with respect to notices given in connection
with any of the events specified in Section 2.09(d)(ii). Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to
be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the
amount of such prepayment; provided, that, (1) if a notice of prepayment is given in connection
with a conditional notice of termination or reduction of the Commitments as contemplated by
Section 2.07(c), then such notice of prepayment may be revoked if such notice of termination or
reduction is revoked in accordance with Section 2.07(c) and (2) any such notices given in
connection with any of the events specified in Section 2.09(d) may be conditioned upon (x) the
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consummation of the Asset Sale or the issuance of Equity Interests or Indebtedness (as
applicable) or (y) the receipt of net cash proceeds from Asset Sales or Net Returns of Capital.
Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. In the event the Borrower is
required to make any concurrent prepayments under both paragraph (c) and also another
paragraph of this Section 2.09, any such prepayments shall be applied toward a prepayment
pursuant to paragraph (c) before any prepayment pursuant to any other paragraph of this
Section 2.09. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.11 and shall be made in the manner specified in Section 2.08(b).
(h)RIC Tax Distributions. Notwithstanding anything herein to the contrary,
Net Asset Sale Proceeds and Net Return of Capital required to be applied to the prepayment of
the Loans pursuant to Section 2.09(d) shall exclude the amounts estimated in good faith by the
Borrower to be necessary for the Borrower to make distributions on account of such Net Asset
Sale Proceeds and Net Returns of Capital sufficient in amount to achieve the objectives set forth
in (i), (ii) and (iii) of Section 6.05(b)(1) hereof solely to the extent that the Tax Amount in or
with respect to any taxable year (or any calendar year, as relevant) is increased as a result of the
receipt of such Net Asset Sale Proceeds or Net Return of Capital, as the case may be.
SECTION 2.10Fees.
(a)Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee, which shall accrue for the period
beginning on the Restatement Effective Date to and including the date such Xxxxxx’s
Commitment terminates at a rate equal to (x) 0.50% per annum on the daily unused amount of
the Dollar Commitments and Multicurrency Commitments, as applicable, of such Lender as of
the close of business on such day if the daily unused amount of the Dollar Commitments and the
Multicurrency Commitments is greater than sixty six and two-thirds percent (66 and 2/3%) of
such Lender’s Dollar Commitment and Multicurrency Commitment, as applicable and (y)
0.375% per annum on the daily unused amount of the Dollar Commitments and Multicurrency
Commitments, as applicable of such Lender as of the close of business on such day if the daily
unused amount of the Dollar Commitment and Multicurrency Commitment is equal to or less
than sixty six and two-thirds percent (66 and 2/3%). Accrued commitment fees shall be payable
in arrears (x) within one Business Day after each Quarterly Date and (y) on the earlier of the date
the Commitments of the respective Class terminate and the Revolver Termination Date,
commencing on the first such date to occur after the Restatement Effective Date. All
commitment fees shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the last day). For
purposes of computing commitment fees, the Commitments of any Class of a Lender shall be
deemed to be used to the extent of the outstanding Loans of such Class and LC Exposure of such
Class of all Lenders.
(b)Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Multicurrency Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at a rate per annum equal to the
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Applicable Margin applicable to interest on Eurocurrency Loans (or, if such Letter of Credit is
denominated in Pounds Sterling or, Swiss Francs or, following a Benchmark Transition Event
with respect to Term XXXXX, Canadian Dollars, RFR Loans) on the average daily amount of
such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Restatement Effective Date to but
excluding the later of the date on which such Xxxxxx’s Multicurrency Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank
a fronting fee, which shall accrue at the rate of one-half of one percent (0.50%) per annum on the
average daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Restatement
Effective Date to but excluding the later of the date of termination of the Commitments and the
date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees
with respect to the issuance, amendment renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees accrued through and
including each Quarterly Date shall be payable on the third Business Day following such
Quarterly Date, commencing on the first such date to occur after the Restatement Effective Date;
provided that all such fees with respect to the Letters of Credit shall be payable on earlier of the
Revolver Termination Date and the date on which all Multicurrency Commitments are otherwise
terminated in accordance with the terms hereof (such earlier date, the “termination date”) and the
Borrower shall pay any such fees that have accrued and that are unpaid on the termination date
and, in the event any Letters of Credit shall be outstanding that have expiration dates after the
termination date, the Borrower shall prepay on the termination date the full amount of the
participation and fronting fees that will accrue on such Letters of Credit subsequent to the
termination date through but not including the date such outstanding Letters of Credit are
scheduled to expire (and in that connection, the Multicurrency Lenders agree not later than the
date two Business Days after the date on which the last such Letter of Credit shall expire or be
terminated to rebate to the Borrower the excess, if any, of the aggregate participation and
fronting fees that ultimate accrue through the date of such expiration or termination). Any other
fees payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 Business
Days after demand. All participation fees and fronting fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(c)Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrower and the Administrative Agent.
(d)Payment of Fees. All fees payable hereunder shall be paid on the dates
due, in Dollars and immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of facility fees and
participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances absent manifest error.
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SECTION 2.11Interest.
(a)ABR Loans. The Loans constituting each ABR Borrowing shall bear
interest at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(b)Term SOFR Loans. The Loans constituting each Term SOFR Borrowing
shall bear interest at a rate per annum equal to Adjusted Term SOFR for the related Interest
Period for such Borrowing plus the Applicable Margin.
(c)Eurocurrency Loans. The Loans constituting each Eurocurrency
Borrowing shall bear interest at a rate per annum equal to the Adjusted Eurocurrency Rate for the
related Interest Period for such Borrowing plus the Applicable Margin.
(d)RFR Loans.The Loans constituting each RFR Borrowing shall bear
interest at a rate per annum equal to Adjusted Daily Simple RFR for the applicable Currency plus
the Applicable Margin.
(e)Default Interest. Notwithstanding the foregoing, (x) automatically, if any
Event of Default described in clause (a), (b), (d) (only with respect to Section 6.07), (h) or (i) of
Article VII has occurred and is continuing, or if the Covered Debt Amount exceeds the
Borrowing Base during the 5-Business Day period (or, if applicable, the 30-Business Day period)
referred to in Section 2.09(c), and (y) upon the demand of the Administrative Agent or the
Required Lenders when any other Event of Default has occurred and is continuing, the interest
rates applicable to the Loans shall accrue, and any fee or other amount due and payable (after
giving effect to any grace or cure period) by the Borrower hereunder shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of principal of any Loan,
2.00% plus the rate otherwise applicable to such Loan as provided above, (ii) in the case of any
other amount, 2.00% plus (x) if such other amount is denominated in Dollars, the rate applicable
to ABR Loans as provided in paragraph (a) of this Section, (y) if such other amount is
denominated in a Foreign Currency (other than Pounds Sterling or, Swiss Francs or, following a
Benchmark Transition Event with respect to Term XXXXX, Canadian Dollars), the rate
applicable to the applicable Eurocurrency Loans as provided in paragraph (c) of this Section or
(z) if such other amount is denominated in Pounds Sterling or, Swiss Francs or, following a
Benchmark Transition Event with respect to Term XXXXX, Canadian Dollars, the rate
applicable to RFR Loans for the applicable Currency as provided in paragraph (d) of this
Section.
(f)Payment of Interest. Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan in the Currency in which such Loan is
denominated and upon the Maturity Date; provided that (i) interest accrued pursuant to
paragraph (e) of this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan prior to the Maturity Date),
accrued interest on the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any Term SOFR Borrowing
or Eurocurrency Borrowing prior to the end of the Interest Period therefor, accrued interest on
such Borrowing shall be payable on the effective date of such conversion.
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(g)Computation. All interest hereunder shall be computed on the basis of a
year of 360 days, except that (A) Eurocurrency Borrowings in Canadian Dollars or AUD shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and shall be payable for
the actual number of days elapsed (including the first day but excluding the last day), (B) RFR
Borrowings shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day) and (C) ABR Borrowings, at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and shall
be payable for the actual number of days elapsed (including the first day but excluding the last
day). The basis on which interest hereunder shall be computed on Eurocurrency Borrowings in
an Agreed Foreign Currency other than Canadian Dollars, Euros, Pounds Sterling, AUD, New
Zealand Dollars, Swiss Francs, Danish Krone, Norwegian Krone and Swedish Krona shall be
agreed by each Multicurrency Lender and the Borrower at the time such Agreed Foreign
Currency is consented to in accordance with the definition of “Agreed Foreign Currency”. The
applicable Alternate Base Rate, Adjusted Term SOFR Rate, Adjusted Daily Simple RFR or
Adjusted Eurocurrency Rate and each other Benchmark shall be determined by the
Administrative Agent and such determination shall be conclusive absent manifest error.
SECTION 2.12Certain Borrowing Provisions.
(a)If, at any time that the Administrative Agent shall seek to determine the
relevant Screen Rate on (1) the RFR Rate Day for an RFR Borrowing, (2) the Quotation Day for
any Interest Period for a Eurocurrency Borrowing or(other than any Eurocurrency Borrowing
denominated in Canadian Dollars), (3) the Periodic Term SOFR Determination Day for a Term
SOFR Borrowing or (4) the Periodic Term XXXXX Determination Day for a Eurocurrency Loan
denominated in Canadian Dollars, the applicable Screen Rate shall not be available for such RFR
Borrowing or such Interest Period for the applicable Currency with respect to such Eurocurrency
Borrowing or Term SOFR Borrowing, as applicable, for any reason and the Administrative
Agent shall determine that it is not possible to determine the Interpolated Rate (which conclusion
shall be conclusive and binding absent manifest error), (i) if the Administrative Agent is seeking
to determine the relevant Screen Rate in the context of a Borrowing Request or an Interest
Election Request electing the applicable Interest Period (A) if such Borrowing is in Dollars then
either, at the Borrower’s election, (u) the applicable Borrowing Request or Interest Election
Request shall be deemed ineffective or (v) such Borrowing shall be made as or converted to an
ABR Borrowing at the Alternate Base Rate, (B) if such Borrowing is in Canadian Dollars then
either, at the Borrower’s election, (w) such Borrowing Request or Interest Election Request shall
be deemed ineffective or (x) such Borrowing shall be made as or converted to a Eurocurrency
Borrowing for which the Eurocurrency Rate shall be equal to the Canadian Prime Rate and (C) if
such Borrowing is in any Agreed Foreign Currency (other than Canadian Dollars) then either, at
the Borrower’s election, (y) the applicable Borrowing Request or Interest Election Request shall
be deemed ineffective or (z) such Borrowing shall be made as or converted to a Eurocurrency
Borrowing (or, in the case of a Borrowing in Pounds Sterling or Swiss Francs, an RFR
Borrowing) for which the Eurocurrency Rate or Daily Simple RFR, as applicable, shall be equal
to the weighted average of the cost to each Lender to fund its pro rata share of such Borrowing
(from whatever source and using whatever methodologies as such Lender may select in its
reasonable discretion) (with respect to a Lender, the “COF Rate”, and with respect to the
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weighted average of the COF Rate applicable to each Lender for any Borrowing, the “Average
COF Rate”) and (ii) if the Administrative Agent is seeking to determine the relevant Screen Rate
in the context of a Eurocurrency Borrowing or Term SOFR Borrowing for which the Interest
Period is continuing or an RFR Borrowing then (A) if such Borrowing is in Dollars such
Borrowing shall continue as an ABR Borrowing at the Alternate Base Rate, (B) if such
Borrowing is in Canadian Dollars then such Borrowing shall continue as a Eurocurrency
Borrowing for which the Eurocurrency Rate shall be equal to the Canadian Prime Rate and (C) if
such Borrowing is in any Agreed Foreign Currency (other than Canadian Dollars), then such
Borrowing shall continue as a Eurocurrency Borrowing (or RFR Borrowing, as applicable) for
which the Eurocurrency Rate (or Daily Simple RFR, as applicable) shall be the Average COF
Rate.
(b)Alternate Rate of Interest. If:
(i)the Administrative Agent determines (which determination shall be
conclusive and binding absent manifest error) (A) prior to the commencement of any
Interest Period for a Term SOFR Borrowing or a Eurocurrency Borrowing, that adequate
and reasonable means do not exist for ascertaining Adjusted Term SOFR or the Adjusted
Eurocurrency Rate for a Loan in the applicable Currency for the applicable Interest
Period or (B) at any time for an RFR Borrowing, that adequate and reasonable means do
not exist for ascertaining Adjusted Daily Simple RFR for the applicable Currency; or
(ii)the Administrative Agent is advised by the Required Lenders that
(A) prior to the commencement of any Interest Period for a Term SOFR Borrowing or a
Eurocurrency Borrowing, the Adjusted Term SOFR or the Adjusted Eurocurrency Rate
for a Loan in the applicable Currency for the applicable Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining their
respective Loans included in such Borrowing for such Interest Period or (B) at any time
for an RFR Borrowing, Adjusted Daily Simple RFR for the applicable Currency will not
adequately and fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for the applicable Currency;
and, in each case, the provisions of Section 2.12(d) are not applicable, then the Administrative
Agent shall give notice thereof to the Borrower and the affected Lenders by telephone, telecopy
or e-mail as promptly as practicable thereafter setting forth in reasonable detail the basis for such
determination and, until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest Election Request electing
the applicable Interest Period for a Term SOFR Borrowing or for a Eurocurrency Borrowing in
the applicable Currency shall be ineffective, (ii) in the case of any Borrowing Request requesting
a Term SOFR Borrowing or a Eurocurrency Borrowing in the applicable Currency for the
applicable Interest Period or an RFR Borrowing, as applicable, (A) if such Borrowing is in
Dollars then either, at the Borrower’s election, (u) the applicable Borrowing Request shall be
deemed ineffective or (v) such Borrowing shall be made as an ABR Borrowing at the Alternate
Base Rate, (B) if such Borrowing is in Canadian Dollars then either, at the Borrower’s election,
(w) such Borrowing Request shall be deemed ineffective or (x) such Borrowing shall be made as
a Eurocurrency Borrowing for which the Eurocurrency Rate shall be equal to the Canadian Prime
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Rate and (C) if such Borrowing is in any Agreed Foreign Currency (other than Canadian
Dollars), then either, at the Borrower’s election, (y) the applicable Borrowing Request shall be
deemed ineffective or (z) such Borrowing shall be made as or converted to a Eurocurrency
Borrowing or RFR Borrowing, as applicable, for which the Eurocurrency Rate or Daily Simple
RFR, as applicable, shall be equal to the Average COF Rate and (iii) in the case of a Term SOFR
Borrowing or a Eurocurrency Borrowing for which the Interest Period is continuing or an RFR
Borrowing, as applicable, in each case, unless prepaid, then (A) if such Borrowing is in Dollars
such Borrowing shall continue as an ABR Borrowing at the Alternate Base Rate, (B) if such
Borrowing is in Canadian Dollars then such Borrowing shall continue as a Eurocurrency
Borrowing for which the Eurocurrency Rate shall be equal to the Canadian Prime Rate and (C) if
such Borrowing is in any Agreed Foreign Currency (other than Canadian Dollars), then such
Borrowing shall continue as a Eurocurrency Borrowing or RFR Borrowing, as applicable, for
which the Eurocurrency Rate or Daily Simple RFR, as applicable, shall be equal to the Average
COF Rate; provided that, if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Types of Borrowings shall be permitted; provided, further that, in
connection with any ABR Borrowing made pursuant to the terms of this Section 2.12(b), the
determination of the Alternate Base Rate shall disregard clause (d) of the definition thereof.
(c)Illegality. Without duplication of any other rights that any Lender has
hereunder, if any Lender determines that any law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful for any Lender to make, maintain or fund Loans whose
interest is determined by reference to any Benchmark or to determine or charge interest rates
based upon any Benchmark, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars or any Agreed
Foreign Currency in any applicable market, then, on notice thereof by such Lender to the
Borrower and the Administrative Agent, (i) any obligation of such Lender to (x) make RFR
Loans in the affected currency or currencies, (y) make or continue Eurocurrency Loans in the
affected Currency or currencies or, (z) in the case of Term SOFR Loans, to convert ABR Loans
to Term SOFR Loans, shall be suspended, and (ii) if such notice asserts the illegality of such
Lender making or continuing ABR Loans the interest rate on which is determined by the
Administrative Agent by reference to the Adjusted Term SOFR component of the Alternate Base
Rate, the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Adjusted Term
SOFR component of the Alternate Base Rate, in each case until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, (x)(A) all applicable Term SOFR Borrowings of
such Lender shall automatically convert to ABR Borrowings and (B) all RFR Borrowings and
Eurocurrency Borrowings denominated in the affected Agreed Foreign Currency of such Lender
shall automatically convert to Dollars based on the Dollar Equivalent at such time and shall be an
ABR Borrowing (the interest rate on which ABR Borrowings of such Lender shall, if necessary
to avoid such illegality, be determined by the Administrative Agent without reference to the
Term SOFR component of the Alternate Base Rate), (1) with respect to Term SOFR Borrowings
or Eurocurrency Borrowings, either (I) on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Term SOFR Borrowings or Eurocurrency
Borrowings to such day, or (II) immediately, if such Lender may not lawfully continue to
maintain such Term SOFR Borrowings or Eurocurrency Borrowings (in which event Borrower
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shall not be required to pay any yield maintenance, breakage or similar fees) or (2) with respect
to RFR Borrowings, on the immediately succeeding Business Day and (y) if such notice asserts
the illegality of such Lender determining or charging interest rates based upon Term SOFR, the
Administrative Agent shall during the period of such suspension compute the Alternate Base
Rate applicable to such Lender without reference to the Adjusted Term SOFR component thereof
until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for
such Lender to determine or charge interest rates based upon Term SOFR. Upon any such
conversion, the Borrower shall also pay accrued interest on the amount so converted.
(d)Benchmark Replacement. Notwithstanding anything to the contrary
herein or in any other Loan Document:
(i)Replacing Term SOFR Loans. With respect to Term SOFR Loans, upon
the earlier of (x) the occurrence of a Benchmark Transition Event and (y) the Early Opt-
in Effective Date, the Benchmark Replacement described in clause (1) thereof will
replace such Benchmark for all purposes hereunder and under any Loan Document in
respect of any setting of such Benchmark on such day and all subsequent settings,
without any amendment to, or further action or consent of any other party to this
Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple
SOFR, all interest payments will be payable on a monthly basis.
(ii)Replacing Other Loans and Future Benchmarks. For Eurocurrency Loans,
RFR Loans or Loans utilizing any future Benchmark (including Daily Simple SOFR), on
the earlier of (x) the occurrence of a Benchmark Transition Event and (y) the date written
notice of an Early Opt-in Election is provided to the Lenders by the Administrative
Agent, the Benchmark Replacement described under clause (2) thereof will replace the
then-current Benchmark for all purposes hereunder and under any Loan Document in
respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after
the date notice of such Benchmark Replacement is provided to the Lenders without any
amendment to, or further action or consent of any other party to, this Agreement or any
other Loan Document, so long as the Administrative Agent has not received, by such
time, written notice of objection to such Benchmark Replacement from Lenders
comprising the Required Lenders. If the Benchmark Replacement is Daily Compounded
CORRA, all interest payments will be payable on a monthly basis.
(iii)At any time that the administrator of the then-current Benchmark has
permanently or indefinitely ceased to provide such Benchmark or such Benchmark has
been announced by the regulatory supervisor for the administrator of such Benchmark
pursuant to public statement or publication of information to be no longer representative
of the underlying market and economic reality that such Benchmark is intended to
measure and that representativeness will not be restored, the Borrower may revoke any
request for a borrowing of, conversion to or continuation of Loans to be made, converted
or continued that would bear interest by reference to such Benchmark until the
Xxxxxxxx’s receipt of notice from the Administrative Agent that a Benchmark
Replacement has replaced such Benchmark, and, failing that, (x) the Borrower will be
deemed to have converted any request for a Term SOFR Borrowing into a request for a
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Borrowing of or conversion to ABR Loans, (y) any request by the Borrower for a
Eurocurrency Borrowing in an Agreed Foreign Currency (other than Canadian Dollars)
shall be ineffective or (z) any request by the Borrower for a Eurocurrency Borrowing
denominated in Canadian Dollars shall be converted to a Eurocurrency Borrowing atfor
which the Eurocurrency Rate shall be equal to the Canadian Prime Rate. During the
period referenced in the foregoing sentence, (a) the component of Alternate Base Rate or
Canadian Prime Rate, as applicable, based upon the Benchmark will not be used in any
determination of Alternate Base Rate or Canadian Prime Rate, as applicable, and (b) if
any Loan in any Currency is outstanding, (x) if such Loan is a Term SOFR Loan, then
such Loan shall, on the last day of the Interest Period applicable to such Loan, at the
Xxxxxxxx’s election prior to such day: (1) be prepaid by the Borrower on such day or (2)
be converted by the Administrative Agent to, and shall constitute, an ABR Loan
denominated in Dollars on such date, (y) if such Loan is an RFR Loan or a Eurocurrency
Loan denominated in any Agreed Foreign Currency (other than Canadian Dollars), then
such Loan shall, on the last day of the Interest Period applicable to such Loan, at the
Xxxxxxxx’s election prior to such day: (1) be prepaid by the Borrower on such day or (2)
be converted by the Administrative Agent to, and (subject to the remainder of this
subclause (2)) shall constitute, an ABR Loan denominated in Dollars (in an amount equal
to the Dollar Equivalent of such Loan) on such day (it being understood and agreed that if
the Borrower does not so prepay such Loan on such day by 12:00 noon, New York City
time, the Administrative Agent is authorized to effect such conversion of such
Eurocurrency Loan into an ABR Loan denominated in Dollars) and, in the case of this
subclause (2), upon any subsequent implementation of a Benchmark Replacement in
respect of such Agreed Foreign Currency pursuant to this Section 2.12(d) and with the
Borrower’s consent (which may be given in its sole discretion), such ABR Loan
denominated in Dollars shall then be converted by the Administrative Agent to, and shall
constitute, an RFR Loan or a Eurocurrency Loan, as applicable, denominated in such
original Currency (in an amount equal to the Foreign Currency Equivalent of such Loan)
on the day of such implementation, giving effect to such Benchmark Replacement in
respect of such Foreign Currency or (z) if such Loan is a Eurocurrency Loan
denominated in Canadian Dollars, then such Loan shall, on the last day of the Interest
Period applicable to such Loan, at the Borrower’s election prior to such day: (1) be
prepaid by the Borrower on such day or (2) be converted by the Administrative Agent to
a Eurocurrency Loan wherefor which the Eurocurrency Rate shall be equal to the
Canadian Prime Rate.
(iv)Benchmark Replacement Conforming Changes. In connection with the
use, implementation or administration of a Benchmark Replacement (or, with respect to
Term SOFR, Term XXXXX or Daily Simple RFR, at any time), the Administrative Agent
will have the right to make Benchmark Replacement Conforming Changes from time to
time and, notwithstanding anything to the contrary herein or in any other Loan
Document, any amendments implementing such Benchmark Replacement Conforming
Changes will become effective without any further action or consent of any other party to
this Agreement or any other Loan Document.
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(v)Notices; Standards for Decisions and Determinations. The Administrative
Agent will promptly notify the Borrower and the Lenders of (w) any occurrence of a
Benchmark Transition Event, or an Early Opt-in Election, as applicable, (x) the
implementation of any Benchmark Replacement, (y) the effectiveness of any Benchmark
Replacement Conforming Changes and (z) the removal or reinstatement of any tenor of a
Benchmark pursuant to clause (vi) below. Any determination, decision or election that
may be made by the Administrative Agent or, if applicable, any Lender (or group of
Lenders) pursuant to this Section 2.12(d), including any determination with respect to a
tenor, rate or adjustment or of the occurrence or non-occurrence of an event,
circumstance or date and any decision to take or refrain from taking any action, will be
conclusive and binding absent manifest error and may be made in its or their sole
discretion and without consent from any other party to this Agreement or any other Loan
Document, except, in each case, as expressly required pursuant to this Section 2.12(d).
(vi)Unavailability of Tenor of Benchmark. At any time (including in
connection with the implementation of a Benchmark Replacement), (x) if the then-current
Benchmark is a term rate (including Term SOFR) then the Administrative Agent may
remove any tenor of such Xxxxxxxxx that is unavailable or non-representative for
Benchmark (including Benchmark Replacement) settings and (y) the Administrative
Agent may reinstate any such previously removed tenor for Benchmark (including
Benchmark Replacement) settings if such Benchmark (A) is subsequently displayed on a
screen or information service for a Benchmark (including a Benchmark Replacement) or
(B) is not, or is no longer, subject to an announcement that it is or will no longer be
representative for Benchmark (including a Benchmark Replacement) settings.
SECTION 2.13Increased Costs.
(a)Increased Costs Generally. If any Change in Law shall:
(i)impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted Eurocurrency Rate) or the Issuing Bank;
(ii)subject any Lender to any Taxes (other than Covered Taxes and Excluded
Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or
its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)impose on any Lender or the Issuing Bank any other condition, cost or
expense (other than Taxes) affecting this Agreement or Term SOFR Loans, Eurocurrency
Loans or RFR Loans made by such Lender or any Letter of Credit or participation
therein;
and the result of any of the foregoing shall be to increase the cost to such Lenders of making or
maintaining any Term SOFR Loan, Eurocurrency Loan or RFR Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the Issuing Bank of
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participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of principal,
interest or otherwise), then, upon the request of such Lender or Issuing Bank, the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, in Dollars, such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered; provided that no Lender will claim from the
Borrower the payment of any of the amounts referred to in this paragraph (a) if not generally
claiming similar compensation from its other similar customers in similar circumstances.
(b)Capital and Liquidity Requirements. If any Lender or the Issuing Bank
determines that any Change in Law regarding capital or liquidity requirements has or would have
the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the
capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or
the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the
Issuing Bank or such Xxxxxx’s or the Issuing Bank’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies
and the policies of such Xxxxxx’s or the Issuing Bank’s holding company with respect to capital
adequacy or liquidity position), by an amount deemed to be material by such Lender or the
Issuing Bank, then from time to time the Borrower will pay to such Lender or the Issuing Bank,
as the case may be, in Dollars, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any
such reduction suffered.
(c)Certificates from Lenders. A certificate of a Lender or the Issuing Bank
setting forth (in reasonable detail the basis for and calculation of) the amount or amounts, in
Dollars, necessary to compensate such Lender or the Issuing Bank or its holding company, as the
case may be, as specified in paragraph (a) or (b) of this Section shall be promptly delivered to the
Borrower and shall be conclusive absent manifest error (it being understood that no Lender shall
be required to disclose (i) any confidential or price sensitive information or (ii) any information
to the extent prohibited by applicable law). The Borrower shall pay such Lender or the Issuing
Bank, as the case may be, the amount shown as due on any such certificate within ten (10) days
after receipt thereof.
(d)Delay in Requests. Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender’s or the Issuing Bank’s right to demand such compensation; provided that no
Obligor shall be required to compensate a Lender or the Issuing Bank pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions suffered more than six
months prior to the date that such Lender or the Issuing Bank notifies the Borrower in writing of
any such Change in Law giving rise to such increased costs or reductions (except that, if the
Change in Law giving rise to such increased costs is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof).
SECTION 2.14Break Funding Payments. In the event of (a) the payment of
any principal of any Term SOFR Loan or Eurocurrency Loan other than on the last day of an
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Interest Period therefor (including as a result of the occurrence of any Commitment Increase
Date or an Event of Default), (b) the conversion of any Term SOFR Loan or Eurocurrency Loan
other than on the last day of an Interest Period therefor, (c) the failure to borrow, convert,
continue or prepay any Term SOFR Loan or Eurocurrency Loan on the date specified in any
notice delivered pursuant hereto (including in connection with any Commitment Increase Date
and regardless of whether such notice is permitted to be revocable under Section 2.09(g) and is
revoked in accordance herewith), or (d) the assignment as a result of a request by the Borrower
pursuant to Section 2.18(b) of any Term SOFR Loan or Eurocurrency Loan other than on the last
day of an Interest Period therefor, then, in any such event, the Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event (excluding loss of anticipated
profits). In the case of a Term SOFR Loan or Eurocurrency Loan, the loss to any Lender
attributable to any such event (excluding, in any event, loss of anticipated profits) shall be
deemed to include an amount determined by such Lender to be equal to the excess, if any, of:
(i)the amount of interest that such Xxxxxx would pay for a deposit equal to
the principal amount of such Loan referred to in clauses (a), (b), (c) or (d) of this
Section 2.14 denominated in the Currency of such Loan for the period from the date of
such payment, conversion, failure or assignment to the last day of the then-current
Interest Period for such Term SOFR Loan or Eurocurrency Loan, as applicable (or, in the
case of a failure to borrow, convert or continue, the duration of the Interest Period that
would have resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the applicable Benchmark for such Currency for
such Interest Period, over
(ii)the amount of interest that such Xxxxxx would earn on such principal
amount for such period if such Lender were to invest such principal amount for such
period at the interest rate that would be bid by such Lender (or an Affiliate of such
Lender) for deposits denominated in such Currency from other banks in the applicable
interbank market or, in the case of any Agreed Foreign Currency, in the relevant market
for such Agreed Foreign Currency, in each case at the commencement of such period.
Payments under this Section shall be made upon written request of a Lender delivered not later
than thirty (30) Business Days following the payment, conversion, or failure to borrow, convert,
continue or prepay that gives rise to a claim under this Section accompanied by a written
certificate of such Lender setting forth in reasonable detail the amount or amounts that such
Lender is entitled to receive pursuant to this Section, which certificate shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
SECTION 2.15Taxes.
(a)Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Taxes, unless otherwise required by applicable law;
provided that if any applicable law (as determined in the good faith discretion of an applicable
Withholding Agent) requires the deduction or withholding of any Taxes from such payments,
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then (i) the Withholding Agent shall make such deductions or withholdings, (ii) the Withholding
Agent shall timely pay the full amount deducted or withheld to the relevant Governmental
Authority in accordance with applicable law and (iii) if such Tax is a Covered Tax, the sum
payable shall be increased as necessary so that after making all required deductions and
withholdings (including deductions and withholdings applicable to additional sums payable
under this Section 2.15) the Administrative Agent, Lender or the Issuing Bank (as the case may
be) receives an amount equal to the sum it would have received had no such deductions or
withholdings of Covered Tax been made.
(b)Payment of Other Taxes by the Borrower. In addition, the Borrower shall
pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c)Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank for and, within ten (10) Business Days
after written demand therefor, pay the full amount of any Covered Taxes (including Covered
Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) payable
or paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether
or not such Covered Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender, by the Issuing Bank or by the Administrative Agent (on its own
behalf or on behalf of a Lender or the Issuing Bank), shall be conclusive absent manifest error.
(d)Indemnification by the Lenders. To the extent required by any applicable
law, the Administrative Agent may withhold from any payment to any Lender an amount
equivalent to any applicable withholding Tax. Without limiting the provisions of Section 2.15(a)
or (c), each Lender shall, and does hereby, agree severally to indemnify the Administrative
Agent, and shall make payable in respect thereof within 10 days after demand therefor,
(i) against any and all Taxes and any and all related losses, claims, liabilities and expenses
(including fees, charges and disbursements of any counsel for the Administrative Agent)
(collectively, “Tax Damages”) incurred by or asserted against the Administrative Agent by the
Internal Revenue Service or any other Governmental Authority as a result of the failure of the
Administrative Agent to properly withhold Tax from amounts paid to or for the account of such
Lender for any reason (including because the appropriate form was not delivered or not properly
executed, or because such Xxxxxx failed to notify the Administrative Agent of a change in
circumstance that rendered the exemption from, or reduction of withholding tax ineffective) and
(ii) Tax Damages attributable to such Xxxxxx’s failure to comply with the provisions of
Section 9.04 relating to the maintenance of a Participant Register. A certificate as to the amount
of such payment or liability delivered to any Lender by the Administrative Agent shall be
conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under this Agreement or any
other Loan Document or otherwise payable by the Administrative Agent to the Lender from any
other source against any amount due to the Administrative Agent under this paragraph. The
agreements in this paragraph shall survive the resignation and/or replacement of the
Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the
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termination of the Commitments and the repayment, satisfaction or discharge of all other
obligations.
(e)Evidence of Payments. As soon as practicable after any payment of Taxes
by the Borrower to a Governmental Authority pursuant to this Section 2.15, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative Agent. If the
Borrower is required by applicable law or this Agreement to pay any U.S. federal withholding
Taxes (and the Administrative Agent is not so required) and the Borrower fails to pay any such
U.S. federal withholding Taxes that are Excluded Taxes when due to the appropriate
Governmental Authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence on account of such Excluded Taxes, the Borrower shall
indemnify the Administrative Agent and each Lender for any incremental Taxes that may
become payable by the Administrative Agent or such Lender as a result of such failure, but only
to the extent that such incremental Taxes exceed the amount of Excluded Taxes that would have
been borne by the Administrative Agent or a Lender absent such failure.
(f)Status of Lenders.
(i)Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments under this Agreement or any other Loan
Documents shall deliver to the Borrower and the Administrative Agent, at the time or
times prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower or the Administrative Agent
as will permit such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Borrower or the Administrative
Agent, shall deliver such other documentation prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements. Notwithstanding anything to the
contrary in the preceding two sentences, the completion, execution and submission of
such documentation (other than such documentation set forth in Section 2.15(f)(ii)(A) or
(B) or Section 2.15(g) below) shall not be required if in the Lender’s reasonable judgment
such completion, execution or submission would subject such Lender to any material
unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender.
(ii)Without limiting the generality of the foregoing, if the Borrower is a U.S.
Person,
(A)any Lender that is a U.S. Person shall deliver to the Borrower and
the Administrative Agent on or prior to the date on which such Xxxxxx becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed
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originals of IRS Form W-9 certifying that such Lender is exempt from U.S.
federal backup withholding tax;
(B)each Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent, but, in any event, only if
such Foreign Lender is legally entitled to do so) whichever of the following is
applicable:
(1)in the case of a Foreign Lender claiming the benefits of an
income tax treaty to which the United States is a party duly
completed executed originals of Internal Revenue Service
Form W-8BEN or Internal Revenue Service Form
W-8BEN-E, as applicable, or any successor form
establishing an exemption from, or reduction of, U.S.
federal withholding Tax (x) with respect to payments of
interest under any Loan Document, pursuant to the
“interest” article of such tax treaty and (y) with respect to
any other applicable payments under any Loan Document,
pursuant to the “business profits” or “other income” article
of such tax treaty,
(2)xxxx completed executed originals of Internal Revenue
Service Form W-8ECI or any successor form certifying that
the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or
business in the United States,
(3)in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the
Code, (x) a certificate, signed under penalties of perjury, to
the effect that such Foreign Lender is not (I) a “bank”
within the meaning of Section 881(c)(3)(A) of the Code,
(II) a “10 percent shareholder” of the Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or (III) a
“controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code and (y) duly completed
executed originals of Internal Revenue Service Form
W-8BEN or Internal Revenue Service Form W-8BEN-E, as
applicable (or any successor form), certifying that the
Foreign Lender is not a U.S. Person, or
(4)any other form as prescribed by applicable law as a basis
for claiming exemption from or a reduction in United
States federal withholding tax duly completed together with
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such supplementary documentation as may be prescribed
by applicable law to permit the Borrower to determine the
withholding or deduction required to be made, including, to
the extent a Foreign Lender is not the beneficial owner,
xxxx completed executed originals of Internal Revenue
Service Form W-8IMY accompanied by Internal Revenue
Service Form W-8ECI, Internal Revenue Service Form
W-8BEN or Internal Revenue Service Form W-8BEN-E, as
applicable, a certificate substantially similar to the
certificate described in Section 2.15(f)(ii)(B)(3)(x) above,
Internal Revenue Service Form W-9 and/or other
certification documents from each beneficial owner, as
applicable.
(C)any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed originals of any other form prescribed by applicable law as a
basis for claiming exemption from or a reduction in U.S. federal withholding Tax,
xxxx completed, together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower or the Administrative Agent
to determine the withholding or deduction required to be made.
(g)If a payment made to a Lender under this Agreement would be subject to
U.S. federal withholding Tax imposed by FATCA if such Xxxxxx were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Administrative Agent and
the Borrower such documentation prescribed by applicable law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Administrative Agent or the Borrower, at the time or times prescribed by law and at such
time or times reasonably requested by the Administrative Agent or the Borrower, as may be
necessary for the Administrative Agent and the Borrower to comply with their obligations under
FATCA and to determine that such Xxxxxx has complied with such Xxxxxx’s obligations under
FATCA or to determine the amount to deduct and withhold from any such payment. Solely for
purposes of this clause (g), “FATCA” shall include any amendments made to FATCA after the
date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered under this Agreement
expires or becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower and the Administrative Agent in writing of its legal
inability to do so.
(h)Treatment of Certain Refunds. If the Administrative Agent, any Lender or
the Issuing Bank determines, in its sole discretion exercised in good faith, that it has received a
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refund of any Covered Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this Section 2.15, it shall
pay to the Borrower an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section with respect to
the Covered Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of the
Administrative Agent, any Lender or the Issuing Bank, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such
refund ), provided that the Borrower, upon the request of the Administrative Agent, any Lender
or the Issuing Bank, agrees to repay the amount paid over to the Borrower pursuant to this
paragraph (h) (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, any Lender or the Issuing Bank in the
event the Administrative Agent, any Lender or the Issuing Bank is required to repay such refund
to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h),
in no event will the Administrative Agent, any Lender or the Issuing Bank be required to pay any
amount to the Borrower pursuant to this paragraph (h) the payment of which would place the
Administrative Agent, such Lender or the Issuing Bank in a less favorable net position after-
Taxes than the Administrative Agent, such Lender or the Issuing Bank would have been in if the
Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or
otherwise imposed and the indemnification payments or additional amounts with respect to such
Tax had never been paid. This paragraph (h) shall not be construed to require the Administrative
Agent, any Lender or the Issuing Bank to make available its Tax returns or its books or records
(or any other information relating to its Taxes that it deems confidential) to the Borrower or any
other Person.
(i)Survival. Each party’s obligations under this Section 2.15 shall survive
the resignation or replacement of the Administrative Agent or any assignment of rights by, or
replacement of, any Lender or any Issuing Bank, the termination of the Commitments and the
repayment, satisfaction or discharge of all obligations under any Loan Document to which the
Borrower or any of its Subsidiaries is a party.
(j)Defined Terms. For purposes of this Section 2.15, the term “applicable
law” includes FATCA.
SECTION 2.16Payments Generally; Pro Rata Treatment: Sharing of Set-offs.
(a)Payments by the Borrower. The Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees, reimbursement of LC
Disbursements, or under Section 2.13, 2.14 or 2.15, or otherwise) or under any other Loan
Document (except to the extent otherwise expressly provided therein) prior to 2:00 p.m.,
New York City time, on the date when due, in immediately available funds, without set-off,
deduction or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to
the Administrative Agent at the Administrative Agent’s Account, except as otherwise expressly
provided in the relevant Loan Document and except payments to be made directly to the Issuing
Bank as expressly provided herein and pursuant to Sections 2.13, 2.14, 2.15 and 9.03, which
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shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute
any such payments received by it for account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding Business Day and,
in the case of any payment accruing interest, interest thereon shall be payable for the period of
such extension.
All amounts owing under this Agreement (including commitment fees, payments
required under Sections 2.13 and 2.14 (except to the extent otherwise provided therein relating to
any Loan denominated in Dollars, but not including principal of, and interest on, any Loan
denominated in any Foreign Currency or payments relating to any such Loan required under
Section 2.14 or any reimbursement or cash collateralization of any LC Exposure denominated in
any Foreign Currency, which are payable in such Foreign Currency) or under any other Loan
Document (except to the extent otherwise provided therein) are payable in Dollars.
Notwithstanding the foregoing, if the Borrower shall fail to pay any principal of any Loan or LC
Disbursement when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), the unpaid portion of such Loan or such LC Disbursement shall, if such Loan or
such LC Disbursement is not denominated in Dollars, automatically be redenominated in Dollars
on the due date thereof (or, if such due date is a day other than the last day of the Interest Period
therefor, on the last day of such Interest Period) in an amount equal to the Dollar Equivalent
thereof on the date of such redenomination and such principal shall be payable on demand; and if
the Borrower shall fail to pay any interest on any Loan or LC Disbursement that is not
denominated in Dollars, such interest shall automatically be redenominated in Dollars on the due
date therefor (or, if such due date is a day other than the last day of the Interest Period therefor,
on the last day of such Interest Period) in an amount equal to the Dollar Equivalent thereof on the
date of such redenomination and such interest shall be payable on demand.
(b)Application of Insufficient Payments. If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees of a Class then due hereunder, such funds
shall be applied (i) first, to pay interest and fees of such Class then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal and unreimbursed LC Disbursements of such Class then
due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements of such Class then due to such parties.
(c)Pro Rata Treatment. Except to the extent otherwise provided herein:
(i) each Borrowing of a Class shall be made from the Lenders of such Class, and each
termination or reduction of the amount of the Commitments of a Class under Section 2.07, 2.09
or otherwise shall be applied to the respective Commitments of the Lenders of such Class, pro
rata according to the amounts of their respective Commitments of such Class; (ii) each
Borrowing of a Class shall be allocated pro rata among the Lenders of such Class according to
the amounts of their respective Commitments of such Class (in the case of the making of
Loans) or their respective Loans of such Class that are to be included in such Borrowing (in the
case of conversions and continuations of Loans); (iii) each payment of commitment fees under
Section 2.10 shall be made for the account of the Lenders pro rata according to the average daily
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unutilized amounts of their respective Commitments; (iv) each payment or prepayment of
principal of Loans of a Class by the Borrower shall be made for account of the Lenders or such
Class pro rata in accordance with the respective unpaid principal amounts of the Loans of such
Class held by them; and (v) each payment of interest on Loans of a Class by the Borrower shall
be made for account of the Lenders of such Class pro rata in accordance with the amounts of
interest on such Loans of such Class then due and payable to the respective Lenders; provided,
however, that, notwithstanding anything to the contrary contained herein, in the event that the
Xxxxxxxx wishes to make a Multicurrency Borrowing in an Agreed Foreign Currency and the
Multicurrency Commitments are fully utilized, the Borrower may make a Borrowing under the
Dollar Commitments (if otherwise permitted hereunder) and may use the proceeds of such
Borrowing to prepay the Multicurrency Loans (without making a ratable prepayment to the
Dollar Loans) solely to the extent that the Borrower substantially concurrently therewith utilizes
any Multicurrency Commitments made available as a result of such prepayment to make a
Multicurrency Borrowing in an Agreed Foreign Currency.
(d)Sharing of Payments by Xxxxxxx. If any Lender of a Class shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans, or participations in LC Disbursements of a Class
resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its
Loans and participations in LC Disbursements, and accrued interest thereon of such Class then
due than the proportion received by any other Lender of such Class, then the Lender receiving
such greater proportion shall purchase (for cash at face value) participations in the Loans and
participations in LC Disbursements of other Lenders of such Class to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders of such Class ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective
Loans and participations in LC Disbursements of such Class; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in LC Disbursements
to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such participation.
(e)Presumptions of Payment. Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due.
In such event, if the Borrower has not in fact made such payment, then each of the Lenders and
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the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent at the Federal Funds Effective Rate.
(f)Certain Deductions by the Administrative Agent. If any Lender shall fail
to make any payment required to be made by it pursuant to Section 2.04(e), 2.05 or 2.16(e), then
the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are
fully paid.
SECTION 2.17Defaulting Lenders.
Notwithstanding any provision of this Agreement to the contrary, if any Lender
becomes a Defaulting Lender, then the following provisions shall apply for so long as such
Lender is a Defaulting Lender:
(a)commitment fees pursuant to Section 2.10(a) shall cease to accrue on the
unfunded portion of the Commitment of such Defaulting Lender to the extent, and during the
period in which, such Lender is a Defaulting Lender (and the Borrower shall not be required to
pay any such commitment fee that otherwise would have accrued and been required to have been
paid to such Defaulting Lender to the extent and during the period in which such Lender is a
Defaulting Lender);
(b)the Commitment and Credit Exposure of such Defaulting Lender shall not
be included in determining whether all Lenders, two-thirds of the Lenders, two-thirds of the
Lenders of a Class, the Required Lenders or the Required Lenders of a Class have taken or may
take any action hereunder or under any other Loan Document (including any consent to any
amendment or waiver pursuant to Section 9.02, except for any amendment or waiver described in
Section 9.02(b)(i), (ii), (iii) or (iv)); provided that any waiver, amendment or modification
requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender which
affects such Defaulting Lender differently than other Lenders or affected Lenders (as applicable)
shall require the consent of such Defaulting Lender.
(c)if any LC Exposure exists at the time a Multicurrency Lender becomes a
Defaulting Lender then:
(i)all or any part of such LC Exposure shall be reallocated among the non-
Defaulting Multicurrency Lenders in accordance with their respective Applicable
Multicurrency Percentages but only to the extent (x) the sum of all non-Defaulting
Lenders’ Multicurrency Credit Exposures plus such Defaulting Lender’s LC Exposure
does not exceed the total of all non-Defaulting Lenders’ Multicurrency Commitments, (y)
no non-Defaulting Lender’s Multicurrency Credit Exposure will exceed such Xxxxxx’s
Multicurrency Commitment, and (z) the conditions set forth in Section 4.02 are satisfied
at such time (and unless the Borrower has notified the Administrative Agent at such time,
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the Borrower shall be deemed to have represented and warranted that such conditions are
satisfied at such time);
(ii)if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall, without prejudice to any right or remedy
available to it hereunder or under law, within three Business Days following notice by the
Administrative Agent, cash collateralize such Defaulting Lender’s LC Exposure (after
giving effect to any partial reallocation pursuant to clause (i) above) in accordance with
the procedures set forth in Section 2.04(k) for so long as such LC Exposure is
outstanding;
(iii)if the Borrower cash collateralizes any portion of such Defaulting
Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to
pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such
Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC
Exposure is cash collateralized;
(iv)if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant
to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.10(a) and
Section 2.10(b) shall be adjusted in accordance with such non-Defaulting Multicurrency
Lenders’ Applicable Multicurrency Percentages in effect after giving effect to such
reallocation;
(v)if any Defaulting Lender’s LC Exposure is neither cash collateralized nor
reallocated pursuant to this Section 2.17(c), then, without prejudice to any rights or
remedies of the Issuing Bank or any Lender hereunder, all facility fees that otherwise
would have been payable to such Defaulting Lender (solely with respect to the portion of
such Defaulting Xxxxxx’s Commitment that was utilized by such LC Exposure) and letter
of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC
Exposure shall be payable to the Issuing Bank until such LC Exposure is cash
collateralized and/or reallocated; and
(vi)subject to Section 9.16, no reallocation hereunder shall constitute a waiver
or release of any claim of any party hereunder against a Defaulting Xxxxxx xxxxxxx from
that Xxxxxx having become a Defaulting Lender, including any claim of a non-Defaulting
Lender as a result of such non-Defaulting Lender’s increased exposure following such
reallocation.
(d)so long as any Multicurrency Lender is a Defaulting Lender, the Issuing
Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied
that the related exposure will be 100% covered by the Multicurrency Commitments of the non-
Defaulting Multicurrency Lenders and/or cash collateral will be provided by the Borrower in
accordance with Section 2.17(c), and participating interests in any such newly issued or
increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner
consistent with Section 2.17(c)(i) (and Defaulting Lenders shall not participate therein).
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In the event that the Administrative Agent and the Borrower agree in writing that
a Defaulting Lender that is a Dollar Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender shall
purchase at par such of the Loans made to each Borrower of the other Lenders as the
Administrative Agent shall determine may be necessary in order for the Lenders to hold such
Loans in accordance with their Applicable Dollar Percentage in effect immediately after giving
effect to such agreement. In the event that the Administrative Agent, the Borrower and the
Issuing Bank each agrees in writing that a Defaulting Lender that is a Multicurrency Lender has
adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, on the
date of such agreement, such Lender shall no longer be deemed a Defaulting Lender, the
Borrower shall no longer be required to cash collateralize any portion of such Lender’s LC
Exposure cash collateralized pursuant to Section 2.17(c)(ii) above, the LC Exposure of the
Multicurrency Lenders shall be readjusted to reflect the inclusion of such Xxxxxx’s
Multicurrency Commitment and such Lender shall purchase at par the portion of the Loans of the
other Multicurrency Lenders as the Administrative Agent shall determine may be necessary in
order for such Lender to hold such Loans in accordance with its Applicable Multicurrency
Percentage in effect immediately after giving effect to such agreement.
SECTION 2.18Mitigation Obligations; Replacement of Lenders.
(a)Designation of a Different Lending Office. If any Lender exercises its
rights under Section 2.12(b) or requests compensation under Section 2.13, or if the Borrower is
required to pay any Covered Taxes or additional amount to any Lender or any Governmental
Authority for account of any Lender pursuant to Section 2.15, then such Lender shall use
reasonable efforts (subject to overall policy considerations of such Lender) to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if in the sole reasonable
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.13 or 2.15, as the case may be, in the future, or eliminate the
circumstance giving rise to such Lender exercising its rights under Section 2.12(b) and (ii) would
not subject such Lender to any cost or expense not required to be reimbursed by the Borrower
and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b)Replacement of Lenders. If any Lender exercises its rights under
Section 2.12(b) or requests compensation under Section 2.13, or if the Borrower is required to
pay any Covered Taxes or additional amount to any Lender or any Governmental Authority for
account of any Lender pursuant to Section 2.15 and, in each case, such Lender has declined or is
unable to designate a different lending office in accordance with Section 2.18(a), or if any
Xxxxxx becomes a Defaulting Lender, or if any Lender becomes a Non-Consenting Lender, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights
and obligations under this Agreement and the other Loan Documents to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
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assignment); provided that (i) the Borrower shall have received the prior written consent of the
Administrative Agent and the Issuing Bank, which consent shall not be unreasonably withheld,
conditioned or delayed, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements, accrued interest
xxxxxxx, accrued fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of
all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.13 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
(c)Defaulting Lenders. If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.04(e), 2.05 or 9.03(c), then the Administrative
Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any
amounts thereafter received by the Administrative Agent or the Issuing Bank for the account of
such Lender for the benefit of the Administrative Agent or the Issuing Bank to satisfy such
Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/
or (ii) hold any such amounts in a segregated account as cash collateral for, and application to,
any future funding obligations of such Lender under such Sections, in the case of each of clauses
(i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.19Maximum Rate. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively,
the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan, the rate of
interest payable in respect of such Loan hereunder, together with all related Charges, shall be
limited to the Maximum Rate. To the extent lawful, the interest and Charges that would have
been payable in respect of a Loan made to the Borrower, but were not payable as a result of the
operation of this Section, shall be cumulated and the interest and Charges payable to such Lender
by the Borrower in respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01Organization; Powers. Each of the Borrower and its
Subsidiaries, as applicable, is duly organized or incorporated, validly existing and in good
standing under the laws of the jurisdiction of its organization or incorporation, has all requisite
power and authority to carry on its business as now conducted and, except where the failure to do
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so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where
such qualification is required of the Borrower or such Subsidiary, as applicable. There is no
existing default under any charter, by-laws or other organizational documents of Borrower or its
Subsidiaries or any event which, with the giving of notice or passage of time or both, would
constitute a default by any party thereunder.
SECTION 3.02Authorization; Enforceability. The Transactions are within the
Borrower’s corporate powers and have been duly authorized by all necessary corporate and, if
required, by all necessary stockholder action and the Board of Directors of the Borrower and its
Subsidiaries have approved the transactions contemplated in this Agreement. This Agreement
has been duly executed and delivered by the Borrower and constitutes, and each of the other
Loan Documents to which it is a party when executed and delivered will constitute, a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of creditors’ rights and (b) the
application of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SECTION 3.03Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of registration or filing with, or any other action by,
any Governmental Authority, except for (i) such as have been or will be obtained or made and
are in full force and effect and (ii) filings and recordings in respect of the Liens created pursuant
to the Security Documents, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority (including the Investment Company Act and the rules,
regulations and orders issued by the SEC thereunder), (c) will not violate or result in a default in
any material respect under any indenture, agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or assets, or give rise to a right thereunder to require any
payment to be made by any such Person, and (d) except for the Liens created pursuant to the
Security Documents, will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 3.04Financial Condition; No Material Adverse Effect.
(a)Financial Statements. The financial statements delivered to the
Administrative Agent and the Lenders by the Borrower pursuant to Section 4.01(c) and 5.01(a)
and (b) present fairly, in all material respects, the financial condition and results of operations of
the Borrower and its Subsidiaries on a consolidated basis as of the end of and for the applicable
period in accordance with GAAP applied on a consistent basis, subject, in the case of unaudited
financial statements, to year-end audit adjustments and the absence of footnotes. None of the
Borrower or any of its Subsidiaries has any material contingent liabilities, material liabilities for
taxes, material unusual forward or material long-term commitments or material unrealized or
anticipated losses from any unfavorable commitments not reflected in such financial statements.
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(b)No Material Adverse Effect. Since December 31, 2020, there has not been
any event, development or circumstance that has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.05Litigation.
There are no actions, suits, investigations or proceedings by or before any
arbitrator or Governmental Authority now pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or
(ii) that involve this Agreement or the Transactions.
SECTION 3.06Compliance with Laws and Agreements.
Each of the Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is subject to any
contract or other arrangement, the performance of which by the Borrower could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.07Taxes. Each of the Borrower and its Subsidiaries has timely
filed or has caused to be timely filed all material U.S. federal, state and local Tax returns that are
required to be filed by it and all other material Tax returns that are required to be filed by it and
has paid all material Taxes for which it is directly or indirectly liable and any assessments made
against it or any of its property and all other material Taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority, except such Taxes, fees or other charges
the amount or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been provided on
the books of the Borrower or its Subsidiaries, as the case may be. The charges, accruals and
reserves on the books of the Borrower and any of its Subsidiaries in respect of Taxes and other
governmental charges are adequate in accordance with GAAP. Neither the Borrower nor any of
its Subsidiaries has given or been requested to give a waiver of the statute of limitations relating
to the payment of any federal, state, local and foreign Taxes or other impositions, and no Tax
lien (other than Liens permitted pursuant to clause (a) of the definition of Permitted Liens) has
been filed with respect to the Borrower or any of its Subsidiaries. There is no proposed Tax
assessment against the Borrower or any of its Subsidiaries that has been received by the
Borrower or any of its Subsidiaries in writing.
SECTION 3.08ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.09Disclosure.
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(a)All written information (other than financial projections, pro forma
financial information, other forward-looking information and information of a general economic
or general industry nature) which has been made available to the Administrative Agent or any
Lender by the Borrower or any of its representatives on behalf of the Borrower in connection
with the transactions contemplated by this Agreement or delivered under any Loan Document,
taken as a whole, is and will be (after giving effect to all written updates provided by the
Borrower to the Administrative Agent for delivery to the Lenders from time to time) complete,
true and correct in all material respects and does not and will not (after giving effect to all written
updates provided by the Borrower to the Administrative Agent for delivery to the Lenders from
time to time) contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein at the time made and taken as a
whole not misleading in light of the circumstances under which such statements were made;
provided that, solely with respect to information furnished by the Borrower which was provided
to the Borrower from a third party, such information need only be true and correct in all material
respects to the knowledge of the Borrower; and
(b)All financial projections, pro forma financial information and other
forward-looking information which has been delivered to the Administrative Agent or any
Lender by the Borrower or any of its representatives on behalf of the Borrower in connection
with the transactions contemplated by this Agreement or delivered under any Loan Document,
are based upon estimates and assumptions believed by the Borrower in good faith to be
reasonable at the time made, it being recognized that (i) such projections, financial information
and other forward-looking information as they relate to future events are subject to significant
uncertainty and contingencies (many of which are beyond the control of the Borrower and that
no assurance can be given that such projections will be realized) and therefore are not to be
viewed as fact and (ii) actual results during the period or periods covered by such projections,
financial information and other forward-looking information may materially differ from the
projected results set forth therein.
SECTION 3.10Investment Company Act; Margin Regulations.
(a)Status as Business Development Company. The Borrower is an
“investment company” that has elected to be regulated as a “business development company”
within the meaning of the Investment Company Act and qualifies as a RIC.
(b)Compliance with Investment Company Act. The business and other
activities of the Borrower and its Subsidiaries, including, without limitation, entering into this
Agreement and the other Loan Documents to which each is a party, the borrowing of the Loans
hereunder, the application of the proceeds and repayment thereof by the Borrower and the
consummation of the Transactions contemplated by the Loan Documents, do not result in a
violation or breach of the applicable provisions of the Investment Company Act or any rules,
regulations or orders issued by the SEC thereunder, except where such breaches or violations,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
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(c)Investment Policies. The Borrower is in compliance in all material
respects with the Investment Policies and its Valuation Policies, in each case as amended by
Permitted Policy Amendments.
(d)Use of Credit. Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no
part of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin
Stock in violation of law, rule or regulation. The Borrower does not own or intend to carry or
purchase any Margin Stock or to extend “purpose credit” within the meaning of Regulation U.
SECTION 3.11Material Agreements and Liens.
(a)Material Agreements. Schedule 3.11(a) is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee, letter of credit
or other arrangements providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit) to, or guarantee by, the Borrower or any of its
Subsidiaries outstanding on the Restatement Effective Date, and the aggregate principal or face
amount outstanding or that is, or may become, outstanding under each such arrangement is
correctly described in Schedule 3.11(a).
(b)Liens. Schedule 3.11(b) is a complete and correct list of each Lien
securing Indebtedness of any Person outstanding on the Restatement Effective Date covering any
property of the Borrower or any of its Subsidiaries, and the aggregate principal amount of such
Indebtedness secured (or that may be secured) by each such Lien and the property covered by
each such Lien as of the Restatement Effective Date is correctly described in Schedule 3.11(b).
SECTION 3.12Subsidiaries and Investments.
(a)Subsidiaries. Set forth in Schedule 3.12(a) is a complete and correct list of
all of the Subsidiaries of the Borrower as of the Restatement Effective Date together with, for
each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Person
holding ownership interests in such Subsidiary and (iii) the percentage of ownership of such
Xxxxxxxxxx represented by such ownership interests. Except as disclosed in Schedule 3.12(a), as
of the Restatement Effective Date, (x) the Borrower owns, free and clear of Liens (other than
Eligible Liens and Liens permitted pursuant to Section 6.02(b) or (e)), and has the unencumbered
right to vote, all outstanding ownership interests in each Subsidiary shown to be held by it in
Schedule 3.12(a), and (y) all of the issued and outstanding capital stock of each such Subsidiary
organized as a corporation is validly issued, fully paid and nonassessable (to the extent such
concepts are applicable).
(b)Investments. Set forth in Schedule 3.12(b) is a complete and correct list of
all Investments (other than Investments of the types referred to in clauses (b), (c), (d), (e), (f)
(solely with respect to Portfolio Investments), (g) and (i) of Section 6.04) held by the Borrower
or any of its Subsidiaries in any Person on the Restatement Effective Date and, for each such
Investment, (i) the identity of the Person or Persons holding such Investment and (ii) the nature
of such Investment. Except as disclosed in Schedule 3.12(b), as of the Restatement Effective
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Date each of the Borrower and its Subsidiaries owns, free and clear of all Liens (other than Liens
permitted pursuant to Section 6.02), all such Investments.
SECTION 3.13Properties.
(a)Title Generally. Each of the Borrower and its Subsidiaries has good title
to, or valid leasehold interests in, all its real and personal property material to its business, except
for minor defects in title that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes.
(b)Intellectual Property. Each of the Borrower and its Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.14Solvency. On the Restatement Effective Date, and upon the
incurrence of any extension of credit hereunder, on any date on which this representation and
warranty is made, (a) the Borrower will be Solvent on an unconsolidated basis, and (b) each
Obligor will be Solvent on a consolidated basis with the other Obligors.
SECTION 3.15No Default. No Default or Event of Default has occurred and
is continuing under this Agreement.
SECTION 3.16Use of Proceeds. The proceeds of the Loans shall be used for
the general corporate purposes of the Borrower and its Subsidiaries (other than Financing
Subsidiaries except as expressly permitted under Section 6.03(e) or 6.03(i)) in the ordinary
course of its business, including making distributions not prohibited by this Agreement, making
payments on Indebtedness of the Obligors to the extent permitted under this Agreement and the
acquisition and funding (either directly or indirectly as expressly permitted hereunder) of
leveraged loans, mezzanine loans, high yield securities, convertible securities, preferred stock,
common stock and other Investments, but excluding, for clarity, Margin Stock in violation of
applicable law, rule or regulation.
SECTION 3.17Security Documents. The Guarantee and Security Agreement
is effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal,
valid and enforceable first-priority Liens on, and security interests in, the Collateral and, (i) when
all appropriate filings or recordings are made in the appropriate offices as may be required for
perfection by filing under applicable law and, as applicable, and (ii) upon the taking of
possession or control by the Collateral Agent of the Collateral with respect to which a security
interest may be perfected by possession or control (which possession or control shall be given to
the Collateral Agent to the extent possession or control by the Collateral Agent is required by the
Guarantee and Security Agreement), the Liens created by the Guarantee and Security Agreement
shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the
grantors in the Collateral (other than such Collateral in which a security interest cannot be
perfected under the UCC as in effect at the relevant time in the relevant jurisdiction), in each
case subject to no Liens other than Permitted Liens.
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SECTION 3.18Financing Subsidiaries.
(a)Any Structured Subsidiary complies with each of the conditions set forth
in clause (a) or (b) in the definition of “Structured Subsidiary”, as applicable.
(b)Any SBIC Subsidiary complies with each of the conditions set forth in the
definition of “SBIC Subsidiary.”
(c)As of the Restatement Effective Date, the Borrower has no Financing
Subsidiaries.
SECTION 3.19Affiliate Agreements. As of the Restatement Effective Date,
the Borrower has heretofore delivered to each of the Lenders true and complete copies of each of
the Affiliate Agreements (including any schedules and exhibits thereto, and any amendments,
supplements or waivers executed and delivered thereunder). As of the Restatement Effective
Date, (a) each of the Affiliate Agreements is in full force and effect and (b) other than the
Affiliate Agreements, there is no contract, agreement or understanding, in writing, between the
Borrower or any of its Subsidiaries, on the one hand, and any Affiliate of the Borrower, on the
other hand.
SECTION 3.20Compliance with Sanctions. Neither the Borrower nor any of
its Subsidiaries, nor any executive officer or director thereof, nor, to the knowledge of the
Borrower, any Affiliate of the Borrower or any of their respective employees or agents, (i) is
subject to, or subject of, any sanctions or trade embargoes (or similar measures) (collectively,
“Sanctions”) imposed, administered or enforced from time to time by the United States of
America (including the United States Department of the Treasury’s Office of Foreign Assets
Control (“OFAC”) and the U.S. Department of State), the European Union, Her Majesty’s
Treasury, the United Nations Security Council, or any other relevant sanctions authority, (ii) is
located, organized or resident in a Sanctioned Country or (iii) is in violation of Sanctions.
Furthermore, no part of the proceeds of a Loan will be used, directly or indirectly, or made
available by the Borrower to any Person to cause any Person to violate Sanctions or to finance or
facilitate any activities or business of or with any Person, or in any country or territory, that, at
the time of such funding, is, or whose government is, the subject of Sanctions.
SECTION 3.21Anti-Money Laundering and Sanctions Program. The
Borrower has implemented an anti-money laundering program to the extent required by the
Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And
Obstruct Terrorism, as amended (the “USA PATRIOT Act”) and by any other applicable anti-
money laundering laws, and the rules and regulations thereunder and maintains in effect and
enforces policies and procedures designed to ensure compliance by the Borrower and its
Subsidiaries (and, when acting on behalf of the Borrower and its Subsidiaries, their respective
directors, officers, employees and agents) with applicable Sanctions. Furthermore, no part of the
proceeds of a Loan will be used, directly or indirectly, by the Borrower or any Subsidiary or
Affiliate of the Borrower, or by any of their respective directors, officers, agents or employees
acting on behalf of the Borrower or any Subsidiary of the Borrower, to finance or facilitate a
transaction in violation of the anti-money laundering laws.
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SECTION 3.22Anti-Corruption Laws. The Borrower, its Subsidiaries, its
Affiliates, its directors and officers and, to the Borrower’s knowledge, the employees and agents
acting on behalf of the Borrower and its Subsidiaries, are in compliance with all applicable
Sanctions and Anti-Corruption Laws and each of the Borrower and any Subsidiary and Affiliate
of the Borrower has instituted and maintained policies and procedures reasonably designed to
ensure, and which are reasonably expected to continue to ensure, compliance therewith.
Furthermore, no part of the proceeds of a Loan will be used, directly or indirectly, by the
Borrower or any Subsidiary or Affiliate of the Borrower or by any of their respective directors,
officers, agents or employees acting on behalf of the Borrower or any Subsidiary of the
Borrower, to finance or facilitate a transaction in violation of the Anti-Corruption Laws.
SECTION 3.23Beneficial Ownership Certification. As of the Restatement
Effective Date, the information included in any Beneficial Ownership Certification provided on
or prior to the Restatement Effective Date to any Lender in connection with this Agreement is
true and correct in all respects.
SECTION 3.24Affected Financial Institutions. No Obligor is an Affected
Financial Institution.
ARTICLE IV.
CONDITIONS
SECTION 4.01Restatement Effective Date. The effectiveness of this
Agreement and of the obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective until completion of each of the following
conditions precedent (unless a condition shall have been waived in accordance with
Section 9.02):
(a)Documents. Administrative Agent shall have received each of the
following documents, each of which shall be reasonably satisfactory to the Administrative Agent
(and to the extent specified below to each Lender) in form and substance:
(i)Executed Counterparts. From each party hereto either (x) a counterpart of
this Agreement signed on behalf of such party or (y) written evidence satisfactory to the
Administrative Agent (which may include telecopy or e-mail transmission of a signed
signature page to this Agreement) that such party has signed a counterpart of this
Agreement.
(ii)[Reserved].
(iii)Opinion of Counsel to the Borrower. A favorable written customary
opinion (addressed to the Administrative Agent and the Lenders and dated the
Restatement Effective Date) of Dechert LLP, New York counsel for the Borrower, in
form and substance reasonably satisfactory to the Administrative Agent and covering
such matters as the Administrative Agent may reasonably request (and the Borrower
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xxxxxx instructs such counsel to deliver such opinion to the Lenders and the
Administrative Agent).
(iv)Corporate Documents. A certificate of the secretary or assistant secretary
of each Obligor, dated the Restatement Effective Date, certifying that attached thereto are
(v) true and complete copies of the organizational documents of each Obligor certified as
of a recent date by the appropriate governmental official, (w) signature and incumbency
certificates of the officers of such Person executing the Loan Documents to which it is a
party, (x) true and complete resolutions of the Board of Directors of each Obligor
approving and authorizing the execution, delivery and performance of this Agreement
and the other Loan Documents to which it is a party or by which it or its assets may be
bound as of the Restatement Effective Date and, in the case of the Borrower, authorizing
the borrowings hereunder, and that such resolutions are in full force and effect without
modification or amendment, (y) a good standing certificate from the applicable
Governmental Authority of each Obligor’s jurisdiction of incorporation, organization or
formation and in each jurisdiction in which it is qualified as a foreign corporation or other
entity to do business, each dated a recent date prior to the Restatement Effective Date,
and (z) such other documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good standing of the
Obligors, and the authorization of the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(v)Officer’s Certificate. A certificate, dated the Restatement Effective Date
and signed by a Financial Officer of the Borrower, confirming compliance with the
conditions set forth in Sections 4.01(e) and (h) and Sections 4.02 (a), (b), (c) and (d).
(b)Liens. The Administrative Agent shall have received results of a recent
lien search in each relevant jurisdiction with respect to the Obligors, confirming the priority of
the Liens in favor of the Collateral Agent created pursuant to the Security Documents and
revealing no liens on any of the assets of the Obligors except for Liens permitted under
Section 6.02 or Liens to be discharged on or prior to the Restatement Effective Date pursuant to
documentation reasonably satisfactory to the Administrative Agent. All UCC financing
statements, control agreements, stock certificates and other documents or instruments required to
be filed or executed and delivered in order to create in favor of the Collateral Agent, for the
benefit of the Administrative Agent and the Lenders, a first-priority perfected (subject to Eligible
Liens) security interest in the Collateral (to the extent that such a security interest may be
perfected by filing, possession or control under the Uniform Commercial Code) shall have been
properly filed (or provided to the Administrative Agent) or executed and delivered in each
jurisdiction required.
(c)Financial Statements. The Administrative Agent and the Lenders shall
have received, prior to the execution of this Agreement, the audited consolidated balance sheet,
audited consolidated statement of operations, audited consolidated statement of changes in net
assets, audited consolidated statement of cash flows and related audited consolidated schedule of
investments of the Borrower and its consolidated Subsidiaries as of and for the fiscal year ended
December 31, 2020, in each case certified in writing by a Financial Officer of the Borrower as
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presenting fairly in all material respects the financial condition and results of operations of the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes. The
Administrative Agent and the Lenders shall have received any other financial statements of the
Borrower and its Subsidiaries as they shall have reasonably requested.
(d)Consents. The Borrower shall have obtained and delivered to the
Administrative Agent certified copies of all consents, approvals, authorizations, registrations, or
filings (other than any filing required under the Exchange Act or the rules or regulations
promulgated thereunder, including any filing required on Form 8-K) required to be made or
obtained by the Borrower and all guarantors in connection with the Transactions and any other
evidence reasonably requested by, and reasonably satisfactory to, the Administrative Agent as to
compliance with all material legal and regulatory requirements applicable to the Obligors, and
such consents, approvals, authorizations, registrations, filings and orders shall be in full force and
effect and all applicable waiting periods shall have expired and no investigation or inquiry by
any Governmental Authority regarding the Transactions or any transaction being financed with
the proceeds of the Loans shall be ongoing.
(e)No Litigation. There shall not exist any action, suit, investigation,
litigation or proceeding or other legal or regulatory developments pending or, to the knowledge
of the Borrower, threatened in writing in any court or before any arbitrator or Governmental
Authority (including any SEC investigation) that relates to the Transactions or that could
reasonably be expected to have a Material Adverse Effect.
(f)Solvency Certificate. On the Restatement Effective Date, the
Administrative Agent shall have received a solvency certificate of a Financial Officer of the
Borrower dated as of the Restatement Effective Date and addressed to the Administrative Agent
and the Lenders, and in form, scope and substance reasonably satisfactory to Administrative
Agent, with appropriate attachments and demonstrating that both before and after giving effect to
the Transactions, (a) the Borrower will be Solvent on an unconsolidated basis and (b) each
Obligor will be Solvent on a consolidated basis with the other Obligors.
(g)Due Diligence. All customary confirmatory due diligence on the
Borrower and its Subsidiaries shall have been completed by the Administrative Agent and the
Lenders and the results of such due diligence shall be satisfactory to the Administrative Agent
and the Lenders. No information shall have become available which the Administrative Agent
reasonably believes has had, or could reasonably be expected to have, a Material Adverse Effect.
(h)Default. No Default or Event of Default shall have occurred and be
continuing under this Agreement, nor any default or event of default that permits (or which upon
notice, lapse of time or both, would permit) the acceleration of any Material Indebtedness,
immediately before and after giving effect to the Transactions, any incurrence of Indebtedness
xxxxxxxxx and the use of the proceeds hereof.
(i)USA PATRIOT Act. The Administrative Agent and each Lender shall
have received all documentation and other information required by bank regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations,
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including the USA PATRIOT Act, as reasonably requested by the Administrative Agent or such
Lender.
(j)Investment Policies; Valuation Policy. The Administrative Agent shall
have received the Investment Policies and Valuation Policy as in effect on the Restatement
Effective Date in form and substance reasonably satisfactory to the Administrative Agent.
(k)Borrowing Base Certificate. The Administrative Agent shall have
received a Borrowing Base Certificate dated as of the Restatement Effective Date, showing a
calculation of the Borrowing Base as of the date immediately prior to the Restatement Effective
Date, in form and substance reasonably satisfactory to the Administrative Agent.
(l)[Reserved].
(m)Beneficial Ownership Regulation. The Administrative Agent shall have
received, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial
Ownership Regulation, at least five days prior to the Restatement Effective Date, a Beneficial
Ownership Certification.
(n)Fees and Expenses. The Borrower shall have paid in full to the
Administrative Agent, the Arranger and the Lenders all fees and expenses (including reasonable
legal fees to the extent invoiced) related to this Agreement owing on or prior to the Restatement
Effective Date, including any upfront fee due to any Lender on or prior to the Restatement
Effective Date.
(o)Other Documents. The Administrative Agent shall have received such
other documents, instruments, certificates, opinions and information as the Administrative Agent
may reasonably request or require in form and substance reasonably satisfactory to the
Administrative Agent.
The contemporaneous exchange and release of executed signature pages by each
of the Persons contemplated to be a party hereto shall render this Agreement effective and any
such exchange and release of such executed signature pages by all such persons shall constitute
satisfaction or waiver (as applicable) of any condition precedent to such effectiveness set forth
above. Each Lender on the Restatement Effective Date acknowledges receipt of, and satisfaction
with, each of the documents set forth above.
SECTION 4.02Conditions to Each Credit Event. The obligation of each
Lender to make any Loan, and of the Issuing Bank to issue, amend, renew or extend any Letter
of Credit, including in each case any such extension of credit on the Restatement Effective Date,
is additionally subject to the satisfaction of the following conditions:
(a)the representations and warranties of the Obligors set forth in this
Agreement and in the other Loan Documents shall be true and correct in all material respects
(other than any representation or warranty already qualified by materiality or Material Adverse
Effect, which shall be true and correct in all respects) on and as of the date of such Loan or the
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date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, or, as
to any such representation or warranty that refers to a specific date, as of such specific date;
(b)at the time of and immediately after giving effect to such Loan or the date
of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default
or Event of Default shall have occurred and be continuing or would result from such extension of
credit after giving effect thereto and to the use of proceeds thereof on a pro forma basis;
(c)no Borrowing Base Deficiency shall exist at the time of and immediately
after giving effect to such extension of credit and either (i) the aggregate Covered Debt Amount
(after giving effect to such Loan) shall not exceed the Borrowing Base reflected on the
Borrowing Base Certificate most recently delivered to the Administrative Agent or (ii) the
Borrower shall have delivered an updated Borrowing Base Certificate demonstrating that the
Covered Debt Amount (after giving effect to such Loan) shall not exceed the Borrowing Base
after giving effect to such Loan as well as any concurrent acquisitions of Portfolio Investments
by the Borrower or payment of outstanding Loans or Other Covered Indebtedness;
(d)after giving effect to such extension of credit, the Borrower shall be in pro
forma compliance with each of the covenants set forth in Section 6.07; and
(e)the proposed date of such extension of credit shall take place during the
Availability Period.
Each Borrowing, and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date
thereof as to the matters specified in the preceding sentence.
ARTICLE V.
AFFIRMATIVE COVENANTS
Until the Termination Date, the Borrower covenants and agrees with the Lenders
that:
SECTION 5.01Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent for distribution to each Lender (provided that, the
Administrative Agent shall not be required to distribute any document or report to any Lender to
the extent such distribution would cause the Administrative Agent to breach or violate any
agreement that it has with another Person (including any non-reliance or non-disclosure letter
with any Approved Third-Party Appraiser)):
(a)within 90 days after the end of each fiscal year of the Borrower
(commencing with the fiscal year ending December 31, 2020), the audited consolidated balance
sheet and the related audited consolidated statements of operations, audited consolidated
statements of changes in net assets, audited consolidated statements of cash flows and related
audited consolidated schedule of investments of the Borrower and its Subsidiaries on a
consolidated basis as of the end of and for such year, setting forth in each case in comparative
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form the figures for the previous fiscal year (to the extent full fiscal year information is
available), all reported on by KPMG LLP or other independent public accountants of recognized
national standing to the effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (which
report shall be unqualified as to going concern and scope of audit and shall not contain any
explanatory paragraph or paragraph of emphasis with respect to going concern); provided that
the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative
Agent for distribution to each Lender the report filed by the Borrower with the SEC on Form 10-
K for the applicable fiscal year;
(b)within 45 days after the end of each of the first three (3) fiscal quarters of
each fiscal year of the Borrower (commencing with the fiscal quarter ending March 31, 2021),
the consolidated balance sheet and the related consolidated statements of operations,
consolidated statements of changes in net assets, consolidated statements of cash flows and
related consolidated schedule of investments of the Borrower and its Subsidiaries on a
consolidated basis as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the
statement of assets and liabilities, as of the end of) the corresponding period or periods of the
previous fiscal year (to the extent such information is available for the previous fiscal year), all
certified by a Financial Officer of the Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes; provided that the requirements set forth in this
clause (b) may be fulfilled by providing to the Administrative Agent for distribution to each
Lender the report filed by the Borrower with the SEC on Form 10-Q for the applicable quarterly
period;
(c)concurrently with any delivery of financial statements under clause (a) or
(b) of this Section, a certificate of a Financial Officer of the Borrower (i) to the extent the
requirements in clauses (a) and (b) of this Section are not fulfilled by the Borrower delivering the
applicable report delivered to (or filed with) the SEC, certifying that such statements are
consistent with the financial statements filed by the Borrower with the SEC, (ii) certifying as to
whether the Borrower has knowledge that a Default has occurred and is continuing during the
most recent period covered by such financial statements and, if a Default has occurred and is
continuing during such period (or has occurred and is continuing from a prior period), specifying
the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting
forth reasonably detailed calculations (which reconcile to the financial statements) demonstrating
compliance with Sections 6.01(b), (h), (k) and (l), 6.03(e), (g) and (i), 6.04(j), 6.05(b) and (d) and
6.07, (iv) stating whether any change in GAAP as applied by (or in the application of GAAP by)
the Borrower has occurred since the Restatement Effective Date (but only if the Borrower has
not previously reported such change to the Administrative Agent and if such change has had a
material effect on the financial statements) and, if any such change has occurred (and has not
been previously reported to the Administrative Agent), specifying the effect of such change on
the financial statements accompanying such certificate, and (v) attaching a list of Subsidiaries as
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of the date of delivery of such certificate or a confirmation that there is no change in such
information since the date of the last such list;
(d)as soon as available and in any event not later than thirty (30) calendar
days after the end of each monthly accounting period (ending on the last day of each calendar
month) of the Borrower and its Subsidiaries, commencing with the monthly accounting period
ending January 31, 2021, a Borrowing Base Certificate as of the last day of such accounting
period (which Borrowing Base Certificate shall include: (i) an Excel schedule containing
information substantially similar to the information included on the Excel schedule included in
the Borrowing Base Certificate delivered to the Administrative Agent on the Original Effective
Date and (ii) a calculation of the External Quoted Value in accordance with methodologies
described in Sections 5.12(b)(ii)(A)(w), (x), (y) and (z));
(e)promptly but no later than two Business Days after any Financial Officer
of the Borrower shall at any time have knowledge (based upon facts and circumstances known to
him) that there is a Borrowing Base Deficiency or knowledge that the Borrowing Base has
declined by more than 15% from the Borrowing Base stated in the Borrowing Base Certificate
last delivered by the Borrower to the Administrative Agent (other than in connection with an
asset sale or return of capital the proceeds of which are used to prepay the Loans), a Borrowing
Base Certificate as at the date such Financial Officer has knowledge of such Borrowing Base
Deficiency or decline indicating the amount of the Borrowing Base Deficiency or decline as at
the date such Financial Officer obtained knowledge of such deficiency or decline;
(f)promptly upon receipt thereof copies of all significant and non-routine
written reports submitted to the management or Board of Directors of the Borrower by the
Borrower’s independent public accountants in connection with each annual, interim or special
audit or review of any type of the financial statements or related internal control systems of the
Borrower or any of its Subsidiaries delivered by such accountants to the management or board of
directors of the Borrower (other than the periodic reports that the Borrower’s independent
auditors provide, in the ordinary course, to the audit committee of the Borrower’s Board of
Directors);
(g)[reserved];
(h)to the extent not previously delivered, within 45 days after the end of each
of the first three (3) fiscal quarters of each fiscal year of the Borrower and within 90 days after
the end of the fourth fiscal quarter of each fiscal year of the Borrower, all final internal and
external valuation reports relating to the Eligible Portfolio Investments (including all valuation
reports delivered by an Approved Third-Party Appraiser in connection with the quarterly
appraisals of Unquoted Investments in accordance with Section 5.12(b)(ii)(B), but excluding any
valuation reports provided to the Administrative Agent by the Independent Valuation Provider),
and any other information relating to the Eligible Portfolio Investments as reasonably requested
by the Administrative Agent or any other Lender;
(i)to the extent not otherwise provided by the Custodian, within thirty (30)
days after the end of each month, full, correct and complete updated copies of custody reports
(including, to the extent available, (i) activity reports with respect to Cash and Cash Equivalents
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included in the calculation of the Borrowing Base, (ii) an itemized list of each account and the
amounts therein with respect to Cash and Cash Equivalents included in the calculation of the
Borrowing Base and (iii) an itemized list of each Portfolio Investment held in any Custodian
Account owned by the Borrower or any of its Subsidiary reflecting all assets being held in any
Custodian Account owned by the Borrower or any of its Subsidiaries);
(j)within 45 days after the end of each of the first three fiscal quarters of the
Borrower and 90 days after the end of each fiscal year of the Borrower, a certificate of a
Financial Officer of the Borrower certifying that attached thereto is a complete and correct
description of all Portfolio Investments as of the date thereof, including, with respect to each
such Portfolio Investment, the name of the Borrower or Subsidiary holding such Portfolio
Investment and the amounts held by each;
(k)to the extent such information is not otherwise available in the financial
statements delivered pursuant to clause (a) or (b) of this Section, upon the reasonable request of
the Administrative Agent, within five (5) Business Days of the due date set forth in clause (a) or
(b) of this Section for any quarterly or annual financial statements, as the case may be, a schedule
prepared in accordance with GAAP setting forth in reasonable detail with respect to each
Portfolio Investment owned by the Borrower or any of its Subsidiaries (other than Financing
Subsidiaries) where there has been a realized gain or loss in the most recently completed fiscal
quarter, (i) the cost basis of such Portfolio Investment, (ii) the realized gain or loss associated
with such Portfolio Investment, (iii) the associated reversal of any previously unrealized gains or
losses associated with such Portfolio Investment, (iv) the proceeds received with respect to such
Portfolio Investment representing repayments of principal during the most recently ended fiscal
quarter, and (v) any other amounts received with respect to such Portfolio Investment
representing exit fees or prepayment penalties during the most recently ended fiscal quarter;
(l)any change in the information provided in the Beneficial Ownership
Certification, if any, delivered to a Lender that would result in a change to the list of beneficial
owners identified in such certificate;
(m)information and documentation reasonably requested by the
Administrative Agent or any Lender for purposes of compliance with applicable “know your
customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the
Beneficial Ownership Regulation; and
(n)promptly following any request therefor, such other information regarding
the operations, business affairs and financial condition of the Borrower or any of its Subsidiaries,
or compliance with the terms of this Agreement and the other Loan Documents, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.02Notices of Material Events. Promptly after the Borrower
becoming aware of any of the following, the Borrower will furnish to the Administrative Agent
and each Lender prompt written notice of the following:
(a)the occurrence of any Default or Event of Default (unless the Borrower
first became aware of such Default from a notice delivered by the Administrative Agent);
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provided that if such Default is subsequently cured (i) within the time periods set forth herein
and (ii) before the Borrower became aware of such Default, the failure to provide notice of such
Default shall not itself result in an Event of Default hereunder;
(b)the filing or commencement of any action, suit or proceeding by or before
any arbitrator or Governmental Authority against or affecting the Borrower or any of its
Affiliates that, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c)the occurrence of any ERISA Event that, alone or together with any other
ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect; and
(d)any other development (excluding matters of a general economic, financial
of political nature to the extent that they could not reasonably be expected to have a
disproportionate effect on the Borrower) that results in, or could reasonably be expected to result
in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the details of the event
or development requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 5.03Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries (other than Immaterial Subsidiaries) to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.
SECTION 5.04Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including material contractual obligations, that, if
not paid, could reasonably be expected to result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set
aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.05Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Subsidiaries (other than Immaterial Subsidiaries) to, (a) keep and maintain
all property material to the conduct of its business in good working order and condition, ordinary
wear and tear excepted, (b) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily maintained by externally
managed business development companies and (c) upon the reasonable request of the
Administrative Agent, promptly deliver to the Administrative Agent any certificate or certificates
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from the Borrower’s insurance broker or other documentary evidence, in each case,
demonstrating the effectiveness of, or any changes to, such insurance.
SECTION 5.06Books and Records; Inspection and Audit Rights.
(a)Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries to, keep, or cause to be kept, books of record and account in accordance
with GAAP. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior
notice to the Borrower and, in the case of representatives designated by the Administrative
Agent, at the sole expense of the Borrower, to (i) visit and inspect its properties during normal
business hours, to examine and make extracts from its books and records, and (ii) discuss its
affairs, finances and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested, in each case to the extent such
information can be provided or discussed without violation of law, rule or regulation (it being
understood that the Obligors will use their commercially reasonable efforts to be able to provide
such information not in violation of law, rule or regulation); provided that the Borrower or such
Subsidiary shall be entitled to have its representatives and advisors present during any inspection
of its books and records; provided, further, that the Borrower shall not be required to pay for
more than two (2) such visits and inspections in any calendar year unless an Event of Default has
occurred and is continuing at the time of any subsequent visits and inspections during such
calendar year.
(b)Audit Rights. The Borrower will, and will cause each of its Subsidiaries
(other than Financing Subsidiaries) to, permit any representatives designated by Administrative
Agent (including any consultants, accountants and lawyers retained by the Administrative
Agent) to conduct evaluations of the Borrower’s computation of the Borrowing Base and the
assets included in the Borrowing Base (including, for clarity, audits of any Agency Accounts,
funds transfers and custody procedures), all at such reasonable times and as often as reasonably
requested. The Borrower shall pay the reasonable, documented out-of-pocket fees and expenses
of representatives retained by the Administrative Agent to conduct any such evaluation; provided
that the Borrower shall not be required to pay such fees and expenses for more than one such
evaluation during any calendar year unless an Event of Default has occurred and is continuing at
the time of any subsequent evaluation during such calendar year. The Borrower also agrees to
modify or adjust the computation of the Borrowing Base and/or the assets included in the
Borrowing Base, to the extent required by the Administrative Agent or the Required Lenders as a
result of any such evaluation indicating that such computation or inclusion of assets is not
consistent with the terms of this Agreement, provided that if the Borrower demonstrates that such
evaluation is incorrect, the Borrower shall be permitted to re-adjust its computation of the
Borrowing Base.
(c)Notwithstanding the foregoing, nothing contained in this Section 5.06
shall impair or affect the rights of the Administrative Agent under Section 5.12(b)(ii) in any
respect.
SECTION 5.07Compliance with Laws and Agreements. The Borrower will,
and will cause each of its Subsidiaries to, comply with all laws, rules, regulations, including the
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Investment Company Act (if applicable to such Person), and orders of any Governmental
Authority applicable to it (including orders issued by the SEC) or its property and all indentures,
agreements and other instruments, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. Policies and
procedures will be maintained and enforced by or on behalf of the Borrower that are designed in
good faith and in a commercially reasonable manner to promote and achieve compliance, in the
reasonable judgment of the Borrower, by the Borrower and each of its Subsidiaries and, when
acting on behalf of the Borrower or any of its Subsidiaries, their respective directors, officers,
employees and agents with any applicable Anti-Corruption Laws and applicable Sanctions.
SECTION 5.08Certain Obligations Respecting Subsidiaries; Further
Assurances.
(a)Subsidiary Guarantors.
(i)In the event that (1) the Borrower or any of its Subsidiaries shall form or
acquire any new Subsidiary (other than a Financing Subsidiary, a CFC, an Immaterial
Subsidiary or a Transparent Subsidiary), or any other Person shall become a “Subsidiary”
within the meaning of the definition thereof (other than a Financing Subsidiary, a CFC,
an Immaterial Subsidiary or a Transparent Subsidiary); (2) any Structured Subsidiary
shall no longer constitute a “Structured Subsidiary” pursuant to the definition thereof (in
which case such Person shall be deemed to be a “new” Subsidiary for purposes of this
Section 5.08); (3) any SBIC Subsidiary shall no longer constitute an “SBIC Subsidiary”
pursuant to the definition thereof (in which case such Person shall be deemed to be a
“new” Subsidiary for purposes of this Section 5.08); (4) any CFC shall no longer
constitute a “CFC” pursuant to the definition thereof (in which case such Person shall be
deemed to be a “new” Subsidiary for purposes of this Section 5.08); (5) any Transparent
Subsidiary shall no longer constitute a “Transparent Subsidiary” pursuant to the
definition thereof (in which case such Person shall be deemed to be a “new” Subsidiary
for purposes of this Section 5.08); or (6) any Immaterial Subsidiary shall no longer
constitute an “Immaterial Subsidiary” pursuant to the definition thereof (in which case
such Person shall be deemed to be a “new” Subsidiary for purposes of this Section 5.08),
the Borrower will, in each case, on or before thirty (30) days (or such longer period as
may be agreed to by the Administrative Agent in its sole discretion) following such
Person becoming a Subsidiary or such Financing Subsidiary, CFC, Transparent
Subsidiary or Immaterial Subsidiary, as the case may be, no longer qualifying as such,
cause such new Subsidiary or former Financing Subsidiary, former CFC, former
Transparent Subsidiary or former Immaterial Subsidiary, as the case may be, to become a
“Subsidiary Guarantor” (and, thereby, an “Obligor”) under the Guarantee and Security
Agreement pursuant to a Guarantee Assumption Agreement and to deliver such proof of
corporate or other action, incumbency of officers, opinions of counsel and other
documents as is consistent with those delivered by the Borrower pursuant to Section 4.01
on the Restatement Effective Date and as the Administrative Agent shall have reasonably
requested.
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(ii)The Borrower acknowledges that the Administrative Agent and the
Lenders have agreed to exclude each Structured Subsidiary, each SBIC Subsidiary, each
CFC, each Transparent Subsidiary and each Immaterial Subsidiary as an Obligor only for
so long as such Person qualifies as a “Structured Subsidiary”, “SBIC Subsidiary”, “CFC”,
“Transparent Subsidiary” or “Immaterial Subsidiary”, respectively, pursuant to the
definition thereof, and thereafter such Person shall no longer constitute a “Structured
Subsidiary”, “SBIC Subsidiary”, “CFC”, “Transparent Subsidiary” or “Immaterial
Subsidiary”, as applicable, for any purpose of this Agreement or any other Loan
Document.
(b)Ownership of Subsidiaries. The Borrower will, and will cause each of its
Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of its
Subsidiaries is a direct or indirect wholly owned Subsidiary; provided that the foregoing shall not
prohibit any transaction permitted under Section 6.03 or 6.04, so long as after giving effect to
such permitted transaction each of the remaining Subsidiaries is a direct or indirect wholly
owned Subsidiary.
(c)Further Assurances. The Borrower will, and will cause each of the
Subsidiary Guarantors to, take such action from time to time as shall reasonably be requested by
the Administrative Agent to effectuate the purposes and objectives of this Agreement. Without
limiting the generality of the foregoing, the Borrower will, and will cause each of the Subsidiary
Guarantors, to:
(i)take such action from time to time (including filing appropriate Uniform
Commercial Code financing statements and executing and delivering such assignments,
security agreements and other instruments) as shall be reasonably requested by the
Administrative Agent to create, in favor of the Collateral Agent for the benefit of the
Lenders (and any affiliate thereof that is a party to any Hedging Agreement entered into
with the Borrower) and the holders of any Secured Longer-Term Indebtedness, perfected
first-priority security interests and Liens in the Collateral; provided that any such security
interest or Lien shall be subject to the relevant requirements of the Security Documents;
(ii)with respect to each deposit account or securities account of the Obligors
(other than (A) any such account that is maintained by the Borrower in its capacity as
“servicer” for a Financing Subsidiary or any Agency Account, (B) any such accounts
which hold solely money or financial assets of a Financing Subsidiary, (C) any payroll
account so long as such payroll account is coded as such, (D) withholding tax and
fiduciary accounts or any trust account maintained solely on behalf of a Portfolio
Investment, (E) any checking account of the Obligors in which the aggregate value of
deposits therein, together with all other such accounts under this clause (E), does not at
any time exceed $1,000,000, provided that the Borrower will, and will cause each of its
Subsidiary Guarantors to, use commercially reasonable efforts to obtain control
agreements governing any such account in this clause (E), and (F) any account in which
the aggregate value of deposits therein, together with all other such accounts under this
clause (F), does not at any time exceed $75,000; provided that in the case of each of the
foregoing clauses (A) through (F), no other Person (other than the depository institution
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at which such account is maintained) shall have “control” (within the meaning of the
Uniform Commercial Code) over such account, cause each bank or securities
intermediary (within the meaning of the Uniform Commercial Code)) to enter into such
arrangements with the Collateral Agent as shall be appropriate in order that the Collateral
Agent has “control” (within the meaning of the Uniform Commercial Code) over each
such deposit account or securities account (each, a “Control Account”) and in that
connection, the Borrower agrees, subject to Sections 5.08(c)(iv) and (v) below, to cause
all cash and other proceeds of Portfolio Investments received by any Obligor to be
immediately deposited into a Control Account (or otherwise delivered to, or registered in
the name of, the Collateral Agent) and, both prior to and following such deposit, delivery
or registration such cash and other proceeds shall be held in trust by the Borrower for the
benefit and as the property of the Collateral Agent and shall not be commingled with any
other funds or property of such Obligor or any other Person (including with any money or
financial assets of the Borrower in its capacity as “servicer” for a Structured Subsidiary,
or any money or financial assets of a Structured Subsidiary, or any money or financial
assets of the Borrower in its capacity as an “agent” or “administrative agent” for any
other Bank Loans subject to Section 5.08(c)(v) below);
(iii)cause the Financing Subsidiaries to execute and deliver to the
Administrative Agent such certificates and agreements, in form and substance reasonably
satisfactory to the Administrative Agent, as it shall determine are necessary to confirm
that such Financing Subsidiary qualifies or continues to qualify as a “Structured
Subsidiary” or an “SBIC Subsidiary”, as applicable, pursuant to the definitions thereof;
(iv)in the case of any Portfolio Investment consisting of a Bank Loan that
does not constitute all of the credit extended to the underlying borrower under the
relevant underlying loan documents and a Financing Subsidiary holds any interest in the
loans or other extensions of credit under such loan documents, (x) cause such Financing
Subsidiary to be party to such underlying loan documents as a “lender” having a direct
interest (or a participation interest not acquired from such Borrower or other Obligor) in
such underlying loan documents and extensions of credit thereunder; and (y) ensure that,
subject to Section 5.08(c)(v) below, all amounts owing to any Obligor by the underlying
borrower or other obligated party are remitted by the borrower or obligated party (or the
applicable administrative agents, collateral agents or equivalent Person) directly to the
Custodian Account and no other amounts owing by such underlying borrower or
obligated party are remitted to the Custodian Account;
(v)in the event that any Obligor is acting as an agent or administrative agent
under any loan documents with respect to any Bank Loan (or is acting in an analogous
agency capacity under any agreement related to any Portfolio Investment) and such
Obligor does not hold all of the credit extended to the underlying borrower or issuer
under the relevant underlying loan documents or other agreements, ensure that (1) all
funds held by such Obligor in such capacity as agent or administrative agent are
segregated from all other funds of such Obligor and clearly identified as being held in an
agency capacity (an “Agency Account”); (2) all amounts owing on account of such Bank
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Loan or Portfolio Investment by the underlying borrower or other obligated party are
remitted by such borrower or obligated party to either (A) such Agency Account or
(B) directly to an account in the name of the underlying lender to whom such amounts are
owed (for the avoidance of doubt, no funds representing amounts owing to more than one
underlying lender may be remitted to any single account other than the Agency Account);
and (3) within two (2) Business Days after receipt of such funds, such Xxxxxxx acting in
its capacity as agent or administrative agent shall distribute any such funds belonging to
any Obligor to the Custodian Account (provided that if any distribution referred to in this
clause (v) is not permitted by applicable bankruptcy law to be made within such two (2)
Business Day period as a result of the bankruptcy of the underlying borrower, such
Obligor shall use commercially reasonable efforts to obtain permission to make such
distribution and shall make such distribution as soon as legally permitted to do so); and
(vi)in the case of any Portfolio Investment held by any Financing Subsidiary,
including any cash collection related thereto, ensure that such Portfolio Investment shall
not be held in any Custodian Account, or any other account of any Obligor.
SECTION 5.09Use of Proceeds. The Borrower will use the proceeds of the
Loans and the issuances of Letters of Credit only for general corporate purposes of the Borrower
and its Subsidiaries in the ordinary course of business, including making distributions not
prohibited by this Agreement and the acquisition and funding (either directly or indirectly as
permitted hereunder) of leveraged loans, mezzanine loans, high-yield securities, convertible
securities, preferred stock, common stock and other Investments in each case to the extent
otherwise permitted hereunder; provided that neither the Administrative Agent nor any Lender
shall have any responsibility as to the use of any of such proceeds. No part of the proceeds of
any Loan will be used in violation of applicable law, rule or regulation or, directly or indirectly,
for the purpose, whether immediate, incidental or ultimate, of buying or carrying any Margin
Stock. On the Restatement Effective Date, the first day (if any) an Obligor acquires any Margin
Stock and at any other time requested by the Administrative Agent or any Lender, the Borrower
shall furnish to the Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in
Regulation U. Margin Stock shall be purchased by the Obligors only with the proceeds of
Indebtedness not directly or indirectly secured by Xxxxxx Xxxxx (within the meaning of
Regulation U), or with the proceeds of equity capital of the Borrower. No Obligor will (and each
Obligor will procure that its Subsidiaries and its or their respective directors, officers, employees
and agents shall not) directly or indirectly use the proceeds of the Loans or otherwise make
available such proceeds (I) to any Person for the purpose of financing the activities or business of
or with any Person, or in any country or territory, that, at the time of such funding, is, or whose
government is, the subject of any Sanctions or in any other manner that would result in a
violation of Sanctions by any Person or (II) in violation of Anti-Corruption Laws or for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption
Laws. For the avoidance of doubt, Letters of Credit may be issued to support obligations of any
Portfolio Company; provided that the underlying obligations of such Portfolio Company to the
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applicable Obligors in respect of such Letters of Credit shall not be included in the Borrowing
Base.
SECTION 5.10Status of RIC and BDC. The Borrower shall at all times
maintain its status as a “business development company” under the Investment Company Act
and as a RIC under the Code.
SECTION 5.11Investment Policies; Valuation Policy. The Borrower shall at
all times be in compliance in all material respects with its Investment Policies and its Valuation
Policy, in each case as amended by Permitted Policy Amendments.
SECTION 5.12Portfolio Valuation and Diversification Etc. (i) Industry
Classification Groups. For purposes of this Agreement, the Borrower shall assign each Eligible
Portfolio Investment to an Industry Classification Group as reasonably determined by the
Borrower. To the extent that the Borrower reasonably determines that any Eligible Portfolio
Investment is not correlated with the risks of other Eligible Portfolio Investments in an Industry
Classification Group, such Eligible Portfolio Investment may be assigned by the Borrower to an
Industry Classification Group that is more closely correlated to such Eligible Portfolio
Investment. In the absence of adequate correlation, the Borrower shall be permitted to, upon
notice to the Administrative Agent for distribution to each Lender, create up to three additional
industry classification groups for purposes of this Agreement; provided that no more than three
different additional industry classification groups may be created pursuant to this paragraph (a).
(b)Portfolio Valuation Etc.
(i)Settlement-Date Basis. For purposes of this Agreement and the other
Loan Documents, all determinations of whether a Portfolio Investment is an Eligible
Portfolio Investment shall be determined on a Settlement-Date Basis, provided that no
such investment shall be included as an Eligible Portfolio Investment to the extent it has
not been paid for in full.
(ii)Determination of Values. The Borrower will conduct reviews of the value
to be assigned to each of its Eligible Portfolio Investments as follows:
(A)Quoted Investments External Review. With respect to Eligible
Portfolio Investments (including Cash Equivalents) traded in an active and orderly
market for which market quotations are readily available (“Quoted Investments”),
the Borrower shall, not less frequently than once each calendar week, determine
the market value of such Quoted Investments which shall, in each case, be
determined in accordance with one of the following methodologies as selected by
the Borrower (each such value, an “External Quoted Value”):
(w)in the case of public and 144A securities, the
average of the most recent bid prices as determined by two Approved
Dealers selected by the Borrower,
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(x)in the case of Bank Loans, the average of the most
recent bid prices as determined by two Approved Dealers selected by the
Borrower or an Approved Pricing Service which makes reference to at
least two Approved Dealers with respect to such Bank Loans,
(y)in the case of any Quoted Investment traded on an
exchange, the closing price for such Eligible Portfolio Investment most
recently posted on such exchange, and
(z)in the case of any other Quoted Investment, the fair
market value thereof as determined by an Approved Pricing Service.
(B)Unquoted Investments External Review. With respect to all
Portfolio Investments owned by an Obligor for which market quotations are not
readily available (“Unquoted Investments”), the Borrower shall value such
Unquoted Investments in a manner consistent with its Valuation Policy, but in any
event including the valuation of at least 35% of the Value (to be determined as of
the last available Borrowing Base Certificate) of all Unquoted Investments
included in the Borrowing Base by an Approved Third-Party Appraiser which
shall assist the Directing Body of the Borrower in determining the fair market
value of such Unquoted Investments, as of the last day of each fiscal quarter
(values determined in accordance with this sub-clause (B) are referred to as
“Borrower External Unquoted Values”), such assistance each quarter to include
providing the Directing Body of the Borrower (with a copy to the Administrative
Agent) with a written independent valuation report. Each such valuation report
shall also include the information required to comply with paragraph (16) of
Schedule 1.01(c).
(C)Internal Review. The Borrower shall conduct internal reviews to
determine the value of all Eligible Portfolio Investments in accordance with its
Valuation Policy at least once each calendar quarter, and shall conduct internal
reviews with respect to the Eligible Portfolio Investments at least once each
calendar week for the purpose of reviewing and discussing the Borrower’s asset
portfolio (which shall take into account any events of which the Borrower has
knowledge that adversely affect the value of any Eligible Portfolio Investment
(other than in an immaterial manner)) (each such value established pursuant to
this clause (C), an “Internal Value”).
(D)Failure of Borrower to Determine Values. If the Borrower shall
fail to determine the value of any Portfolio Investment as at any date pursuant to
the requirements (but subject to the exclusions) of the foregoing sub-clauses (A),
(B) or (C) then the “Value” of such Portfolio Investment for purposes of the
Borrowing Base as at such date shall be deemed to be zero for purposes of the
Borrowing Base.
(E)Value of Quoted Investments. Subject to Section 5.12(b)(iii), the
“Value” of each Quoted Investment for all purposes of this Agreement shall be
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the lowest of (1) the Internal Value of such Quoted Investment as most recently
determined by the Borrower pursuant to Section 5.12(b)(ii)(C), (2) the External
Quoted Value of such Quoted Investment as most recently determined pursuant to
Section 5.12(b)(ii)(A) and (3) if such Quoted Investment is a debt investment, the
par or face value of such Quoted Investment.
(F)Value of Unquoted Investments. Subject to Section 5.12(b)(iii),
(x)if the Internal Value of any Unquoted Investment as
most recently determined by the Borrower pursuant to
Section 5.12(b)(ii)(C) falls below, or within the range of (as applicable),
the Applicable External Value of such Unquoted Investment as most
recently determined pursuant to Section 5.12(b)(ii)(B), then the “Value” of
such Unquoted Investment for all purposes of this Agreement shall be
deemed to be the lower of (i) the Internal Value and (ii) if such Unquoted
Investment is a debt investment, the par or face value of such Unquoted
Investment; and
(y)if the Internal Value of any Unquoted Investment as
most recently determined by the Borrower pursuant to
Section 5.12(b)(ii)(C) falls above the Applicable External Value (or, as
applicable, the range thereof) of such Unquoted Investment as most
recently determined pursuant to Section 5.12(b)(ii)(B) (and the Applicable
External Value of such Unquoted Investment is such Borrower External
Unquoted Value), then the “Value” of such Unquoted Investment for all
purposes of this Agreement shall be deemed to be the lower of (i) the
midpoint of the range of the Borrower External Unquoted Value and (ii) if
such Unquoted Investment is a debt investment, the par or face value of
such Unquoted Investment.
except that if an Unquoted Investment is acquired during a fiscal quarter, the
“Value” of such Unquoted Investment shall be deemed to be equal to the lowest
of (i) the Internal Value of such Unquoted Investment as determined by the
Borrower pursuant to Section 5.12(b)(ii)(C), (ii) the cost of such Unquoted
Investment; and (iii) if such Unquoted Investment is a debt investment, the par or
face value of such Unquoted Investment, until such time as the Borrower External
Unquoted Value of such Unquoted Investment is determined (or required to be
determined) in accordance with Section 5.12(b)(ii)(B) .
(G)Actions Upon a Borrowing Base Deficiency. If, based upon such
weekly internal review, the Borrower determines that a Borrowing Base
Deficiency exists, then the Borrower shall, promptly and in any event within two
Business Days as provided in Section 5.01(e), deliver a Borrowing Base
Certificate reflecting the new amount of the Borrowing Base and shall take the
actions, and make prepayments (and, to the extent necessary, provide cover for
Letters of Credit as contemplated by Section 2.04(k)), but only to the extent
required by Section 2.09(b).
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(H)Initial Value of Assets. Notwithstanding anything to the contrary
contained herein, from the Restatement Effective Date until the date when the
valuation reports are required to be delivered under Section 5.01(h) for the quarter
ending March 31, 2021, the Value of any Portfolio Investment included in the
Borrowing Base shall be the Value as determined in a manner consistent with this
Section 5.12 and, with respect to assets acquired before the Restatement Effective
Date, as delivered to the Administrative Agent (x) on or prior to the Restatement
Effective Date or (y) after the Restatement Effective Date based on a report of an
Approved Third-Party Appraiser received by the Borrower after the Restatement
Effective Date.
(iii)Testing of Values
(A)Each February 28, April 30, July 31 and October 31 of each
calendar year, commencing on July 31, 2021 (or such other dates as are agreed to
by the Borrower and the Administrative Agent, but in no event less frequently
than once per calendar quarter, each a “Valuation Testing Date”), the
Administrative Agent through an Independent Valuation Provider will value those
Portfolio Investments selected by the Administrative Agent and communicated in
writing to the Borrower at least ten (10) days prior to the applicable Valuation
Testing Date (and which, for the avoidance of doubt, may include Portfolio
Investments other than Unquoted Investments) (values assigned pursuant to this
Section 5.12(b)(iii)(A), together with values assigned by an Independent
Valuation Provider pursuant to Section 5.12(b)(iii)(C) below, the “Agent External
Values”); provided that the assets that the Administrative Agent will have the
right to value under this Section 5.12(b)(ii)(A) will not exceed assets with a Value
approximately equal to the Calculation Amount (as defined below). For the
avoidance of doubt, Unquoted Investments that are part of the Collateral but not
included in the Borrowing Base as of a Valuation Testing Date shall not be
subject to testing under this Section 5.12(b)(iii); provided that such Unquoted
Investment shall continue to be excluded from the Borrowing Base until such time
as the Borrower determines (subject to the other terms and conditions contained
herein) to include it in the Borrowing Base.
(B)For purposes of this Agreement, the “Calculation Amount” shall be
equal to the greater of (a)(i) 125% of the Adjusted Covered Debt Balance (to be
determined as of the last available Borrowing Base Certificate) minus (ii) the sum
of the Values of all Quoted Investments included in the Borrowing Base (the
determination of fair value for such percentage thresholds to be based off of the
last determination of value of the Portfolio Investments pursuant to this
Section 5.12) and (b) 10% of the aggregate Value (or as near thereto as reasonably
practicable) of all Unquoted Investments included in the Borrowing Base (to be
determined as of the last available Borrowing Base Certificate); provided that in
no event shall more than 25% (or, if clause (b) applies, 10% or as near thereto as
reasonably practicable) of the aggregate Value of the Unquoted Investments in the
Borrowing Base (to be determined as of the last available Borrowing Base
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Certificate) be tested by the Independent Valuation Provider on any Valuation
Testing Date.
(C)Supplemental Testing of Values: Notwithstanding the foregoing,
the Administrative Agent, individually or at the request of the Required Lenders,
shall at any time have the right, solely for purposes of the Borrowing Base, to
request in its reasonable discretion any Portfolio Investment included in the
Borrowing Base with a value assigned by the Borrower (other than Portfolio
Investments with Agent External Values as of the most recent Valuation Testing
Date) to be independently valued by an Independent Valuation Provider for
purposes of the Borrowing Base. There shall be no limit on the number of such
appraisals requested by the Administrative Agent in its reasonable discretion and,
subject to Section 5.12(b)(iv)(C) below, the costs of any such valuation shall be at
the expense of the Borrower.
(D)Value Dispute Resolution: If the difference in the Value of any
Portfolio Investment determined by the Borrower pursuant to Section 5.12(b)(ii)
and any Agent External Value is (1) less than or equal to 5% of the Value thereof,
then the Borrower’s Value shall be used, (2) greater than 5% and less than or
equal to 20% of the Value thereof, then the Value of such Portfolio Investment
shall be the average of the Value determined by the Borrower pursuant to
Section 5.12(b)(ii) and the Agent External Value and (3) greater than 20% of the
Value thereof, then either (i) the Value shall be the lesser of the two Values or (ii)
if the Borrower so elects, the Borrower and the Administrative Agent shall retain
(at the Borrower’s sole cost and expense) an additional Approved Third-Party
Appraiser and the Value of such Portfolio Investment shall be the average of the
three valuations (with the lesser of the Agent External Value and the value
determined by the Borrower pursuant to Section 5.12(b)(ii) to be used until the
third Value is obtained). For purposes of this Section 5.12(b)(iii)(C), if the Agent
External Value is a range, then the Value shall be deemed the midpoint of the
range.
(E)Failure of Administrative Agent to Determine Values. If the
Administrative Agent shall fail to determine the value, at any date pursuant to this
Section 5.12(b)(iii), of any Eligible Portfolio Investment identified to the
Borrower in advance of such date as a result of any action, inaction or lack of
cooperation of the Borrower or any of its Affiliates, then the “Value” of such
Eligible Portfolio Investment shall be deemed to be zero. If the Administrative
Agent shall fail to determine the value, at any date pursuant to this
Section 5.12(b)(iii), of any Eligible Portfolio Investment identified to the
Borrower in advance of such date for any other reason, then the Value of such
Eligible Portfolio Investment shall be the lower of the Internal Value and, if such
Unquoted Investment is a debt investment, the par or face value of such Eligible
Portfolio Investment; provided, however that if a Borrower Eternal Unquoted
Value has been obtained with respect to such asset for the quarterly period
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immediately preceding the current quarterly period, then the “Value” of such
Eligible Portfolio will be determined as provided in Section 5.2(b)(ii)(F) above.
(iv)Generally Applicable Valuation Provisions
(A)The Value of any Portfolio Investment for which the Independent
Valuation Provider’s value is used shall be the midpoint of the range (if any)
determined by the Independent Valuation Provider. The Independent Valuation
Provider shall apply a recognized valuation methodology that is commonly
accepted in the Borrower’s industry for valuing Portfolio Investments of the type
being valued and held by the Obligors. Other procedures relating to the valuation
will be reasonably agreed upon by the Administrative Agent and the Borrower.
(B)All valuations shall be on a Settlement-Date Basis. For the
avoidance of doubt, the value of any Portfolio Investments determined in
accordance with any provision of this Section 5.12 shall be the Value of such
Portfolio Investment for purposes of this Agreement until a new Value for such
Portfolio Investment is subsequently determined in good faith in accordance with
this Section 5.12.
(C)Subject to the last sentence of Section 9.03(a), the reasonable and
documented out-of-pocket costs of any valuation reasonably incurred by the
Administrative Agent under this Section 5.12 shall be at the expense of the
Borrower; provided that the Borrower’s obligation to reimburse valuation costs
incurred by the Administrative Agent under Section 5.12(b)(iii)(C) shall under no
circumstances be in excess of the IVP Supplemental Cap.
(D)The values determined by the Independent Valuation Provider
shall be deemed to be “Information” hereunder and subject to Section 9.13 hereof.
(E)The Administrative Agent shall provide a copy of the final results
of any valuation received by the Administrative Agent and performed by the
Independent Valuation Provider or an Approved Third-Party Appraiser to any
Lender within ten (10) Business Days after such Xxxxxx’s request, except to the
extent that such recipient has not executed and delivered a non-reliance letter,
confidentiality agreement or similar agreement requested or required by such
Independent Valuation Provider or Approved Third-Party Appraiser, as
applicable.
(F)The foregoing valuation procedures shall only be required to be
used for purposes of calculating the Borrowing Base and related concepts and
shall not be required to be utilized by the Borrower for any other purpose,
including, without limitation, the delivery of financial statements or valuations
required under ASC820 or the Investment Company Act.
(G)The Administrative Agent shall notify the Borrower of its receipt
of the written final results of any such test within ten (10) Business Days after its
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receipt thereof and shall provide a copy of such results and the related report to
the Borrower within ten (10) Business Days after the Borrower’s request.
(c)Investment Company Diversification Requirements. The Borrower
(together with its Subsidiaries to the extent required by the Investment Company Act) will at all
times comply in all material respects with the portfolio diversification and similar requirements
set forth in the Investment Company Act applicable to business development companies. The
Borrower will at all times, subject to applicable grace periods set forth in the Code, comply with
the portfolio diversification and similar requirements set forth in the Code applicable to RICs.
SECTION 5.13Calculation of Borrowing Base. For purposes of this
Agreement, the “Borrowing Base” shall be determined, as at any date of determination, as the
sum of the products obtained by multiplying (x) the Value of each Eligible Portfolio Investment
(excluding any cash held by the Administrative Agent pursuant to Section 2.04(k)) by (y) the
applicable Advance Rate; provided that:
(a)the Advance Rate applicable to the aggregate Value of all Eligible
Portfolio Investments in their entirety shall be 0% at any time when the Borrowing Base is
composed entirely of Eligible Portfolio Investments issued by fewer than 20 different issuers;
(b)the Advance Rate applicable to that portion of the aggregate Value of the
Eligible Portfolio Investments issued by all issuers in a consolidated group of corporations or
other entities in accordance with GAAP exceeding (i) 5% of the aggregate Value of all Eligible
Portfolio Investments included in the Borrowing Base (for the avoidance of doubt, the
calculation of fair value for purposes of this subclause shall be made without taking into account
any Advance Rate) (the “Total Eligible Portfolio”), shall be 50% of the otherwise applicable
Advance Rate and (ii) the Advance Rate applicable to that portion of the aggregate fair value of
Eligible Portfolio Investments of all issuers in a consolidated group of corporations or other
entities in accordance with GAAP exceeding 7.5% of the Total Eligible Portfolio of the Total
Eligible Portfolio shall be 0%; provided that at any time the Consolidated Asset Coverage Ratio
is less than 175%, the Advance Rate applicable to that portion of the aggregate fair value of
Eligible Portfolio Investments of all issuers in a consolidated group of corporations or other
entities in accordance with GAAP exceeding 5% of the Total Eligible Portfolio shall be 0%;
(c)the Advance Rate applicable to that portion of the Total Eligible Portfolio
issued by Portfolio Companies in the same Industry Classification Group that exceeds (x) 20% of
the Total Eligible Portfolio for each of the Two Largest Industry Classification Groups, and (y)
15% of the Total Eligible Portfolio for any other industry sector, shall be 0%;
(d)the Advance Rate applicable to that portion of the aggregate Value of
Portfolio Investments that are not Cash, Cash Equivalents, Long-Term U.S. Government
Securities or Performing First Lien Bank Loans that exceeds 30% of the Total Eligible Portfolio
shall be 0%;
(e)the Advance Rate applicable to that portion of the aggregate Value of
Portfolio Investments that are Performing Mezzanine Investments, Performing High Yield
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Securities, Performing PIK Obligations and Performing DIP Loans that exceeds 20% of the Total
Eligible Portfolio shall be 0%;
(f)the Advance Rate applicable to that portion of the aggregate Value of
Portfolio Investments that are Performing PIK Obligations that exceeds 5% of the Total Eligible
Portfolio shall be 0%;
(g)the Advance Rate applicable to that portion of the aggregate Value of
Portfolio Investments that are Performing DIP Loans that exceeds 10% of the Total Eligible
Portfolio shall be 0%; and
(h)the Advance Rate applicable to that portion of the aggregate Value of
Portfolio Investments that are Performing Covenant-Lite Loans (excluding, for clarity,
Performing Broadly Syndicated Loans) that exceeds 10% of the Total Eligible Portfolio shall be
0%.
For all purposes of this Section 5.13, (A) all issuers of Eligible Portfolio
Investments that are Affiliates of one another shall be treated as a single issuer (unless such
issuers are Affiliates of one another solely because they are under the common Control of the
same private equity sponsor or similar sponsor) and (B) to the extent the Total Eligible Portfolio
is required to be reduced to comply with this Section 5.13, the Borrower shall be permitted to
choose the Eligible Portfolio Investments to be so removed to effect such reduction. For the
avoidance of doubt, no Portfolio Investment shall be an Eligible Portfolio Investment unless,
among the other requirements set forth in this Agreement, (i) such Investment is subject only to
Eligible Liens, (ii) such Investment is Transferable and (iii) such Investment meets all of the
other criteria set forth on Schedule 1.01(c) hereto. In addition, as used herein, the following
terms have the following meanings:
“Advance Rate” means, as to any Eligible Portfolio Investment and subject to
adjustment as provided above, the following percentages with respect to such Eligible Portfolio
Investment:
Eligible Portfolio Investment | Unquoted | Quoted |
Cash and Cash Equivalents (including Short-Term U.S. Government Securities) | n/a | 100% |
Long-Term U.S. Government Securities | n/a | 95% |
Performing Broadly Syndicated Loans | n/a | 75% |
Performing First Lien Bank Loans | 70% | 75% |
Performing First Lien Middle Market Loans | 65% | 70% |
Performing Last Out Loans | 60% | 60% |
Performing Second Lien Bank Loans | 55% | 60% |
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Performing High Yield Securities | 45% | 50% |
Performing Mezzanine Investments and Performing Covenant- Lite Loans | 40% | 45% |
Performing PIK Obligations and Performing DIP Loans | 20% | 20% |
All other Portfolio Investments (including all Non-Performing Portfolio Investments) | 0% | 0% |
provided, that at any time the Consolidated Asset Coverage Ratio is less than 167% (as reported
in the most recently delivered monthly Borrowing Base Certificate pursuant to Section 5.01(d)),
every Advance Rate in the table above that is below the line for “Performing First Lien Middle
Market Loans” shall be five percentage points less than the applicable rate indicated in the table.
For the avoidance of doubt, the categories above are intended to be indicative of the traditional
investment types. All determinations of whether a particular Portfolio Investment belongs to one
category or another shall be made by the Borrower on a consistent basis with the foregoing. For
example, a secured bank loan solely at a holding company, the only assets of which are the
shares of an operating company, may constitute Mezzanine Investments, but would not
ordinarily constitute a First Lien Bank Loan.
“Bank Loans” means debt obligations (including, without limitation, term loans,
revolving loans, debtor-in-possession financings, the funded portion of revolving credit lines and
letter of credit facilities and other similar loans and investments including interim loans, bridge
loans and second lien loans) that are generally provided under a syndicated loan or credit facility
or pursuant to any loan agreement or other similar credit facility, whether or not syndicated.
“Cash” has the meaning assigned to such term in Section 1.01 of this Agreement.
“Cash Equivalents” has the meaning assigned to such term in Section 1.01 of this
Agreement.
“Covenant-Lite Loan” means a Bank Loan (other than a Performing Broadly
Syndicated Loan) that does not require the Portfolio Company thereunder to comply with at least
one financial maintenance covenant (including, without limitation, any covenant relating to a
borrowing base, asset valuation or similar asset-based requirement), in each case, regardless of
whether compliance with one or more incurrence covenants is otherwise required by such Bank
Loan.
“Defaulted Obligation” means any Investment in Indebtedness (a) as to which, (x)
a default as to the payment of principal and/or interest has occurred and is continuing for a period
of thirty two (32) consecutive days with respect to such Indebtedness (without regard to any
grace period applicable thereto, or waiver thereof) or (y) a default not set forth in clause (x) has
occurred and the holders of such Indebtedness have accelerated all or a portion of the principal
amount thereof as a result of such default; (b) as to which a default as to the payment of principal
and/or interest has occurred and is continuing on another material debt obligation of the Portfolio
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Company under such Indebtedness which is senior or pari passu in right of payment to such
Indebtedness; (c) as to which the Portfolio Company under such Indebtedness or others have
instituted proceedings to have such Portfolio Company adjudicated bankrupt or insolvent or
placed into receivership and such proceedings have not been stayed or dismissed or such
Portfolio Company has filed for protection under the United States Bankruptcy Code or any
similar foreign proceeding (unless, in the case of clause (b) or (c), such Indebtedness is a DIP
Loan, in which case it shall not be deemed to be a Defaulted Obligation under such clause); (d)
as to which a default rate of interest has been and continues to be charged for more than 120
consecutive days, or foreclosure on collateral for such Indebtedness has been commenced and is
being pursued by or on behalf of the holders thereof; or (e) as to which the Borrower has
delivered written notice to the Portfolio Company declaring such Indebtedness in default or as to
which the Borrower otherwise exercises significant remedies following a default.
“DIP Loan” means any Bank Loan (whether revolving or term) that is originated
after the commencement of a case under Chapter 11 of the Bankruptcy Code by a Portfolio
Company, which is a debtor-in-possession as described in Section 1107 of the Bankruptcy Code
or a debtor as defined in Section 101(13) of the Bankruptcy Code in such case (a “Debtor”)
organized under the laws of the United States or any state therein and domiciled in the United
States, which loan satisfies the following criteria: (a) the DIP Loan is duly authorized by a final
order of the applicable bankruptcy court or federal district court under the provisions of
subsection (b), (c) or (d) of 11 U.S.C. Section 364; (b) the Debtor’s bankruptcy case is still
pending as a case under the provisions of Chapter 11 of Title 11 of the Bankruptcy Code and has
not been dismissed or converted to a case under the provisions of Chapter 7 of Title 11 of the
Bankruptcy Code; (c) the Debtor’s obligations under such loan have not been (i) disallowed, in
whole or in part, or (ii) subordinated, in whole or in part, to the claims or interests of any other
Person under the provisions of 11 U.S.C. Section 510; (d) the DIP Loan is secured and the Liens
granted by the applicable bankruptcy court or federal district court in relation to the Loan have
not been subordinated or junior to, or pari passu with, in whole or in part, to the Liens of any
other lender under the provisions of 11 U.S.C. Section 364(d) or otherwise; (e) the Debtor is not
in default on its obligations under the loan; (f) neither the Debtor nor any party in interest has
filed a Chapter 11 plan with the applicable federal bankruptcy or district court that, upon
confirmation, would (i) disallow or subordinate the loan, in whole or in part, (ii) subordinate, in
whole or in part, any Lien granted in connection with such loan, (iii) fail to provide for the
repayment, in full and in cash, of the loan upon the effective date of such plan or (iv) otherwise
impair, in any manner, the claim evidenced by the loan; (g) the DIP Loan is documented in a
form that is commercially reasonable; (h) the DIP Loan shall not provide for more than 50% (or
a higher percentage with the consent of the Required Lenders) of the proceeds of such loan to be
used to repay prepetition obligations owing to all or some of the same lender(s) in a “roll-up” or
similar transaction; (i) no portion of the DIP Loan is payable in consideration other than cash;
and (j) no portion of the DIP Loan has been credit bid under Section 363(k) of the Bankruptcy
Code or otherwise. For the purposes of this definition, an order is a “final order” if the
applicable period for filing a motion to reconsider or notice of appeal in respect of a permanent
order authorizing the Debtor to obtain credit has lapsed and no such motion or notice has been
filed with the applicable bankruptcy court or federal district court or the clerk thereof.
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“EBITDA” means the consolidated net income of the applicable Person
(excluding extraordinary, unusual or non-recurring gains and extraordinary losses (to the extent
excluded in the definition of “EBITDA”, adjusted EBITDA, adjusted consolidated EBITDA or
such similar term as may be used in the applicable documentation) in the relevant agreement
relating to the applicable Eligible Portfolio Investment) for the relevant period plus, without
duplication, the following to the extent deducted in calculating such consolidated net income in
the relevant agreement relating to the applicable Eligible Portfolio Investment for such period: (i)
consolidated interest charges for such period, (ii) the provision for Federal, state, local and
foreign income taxes payable for such period, (iii) depreciation and amortization expense for
such period, and (iv) such other adjustments included in the definition of “EBITDA” (or similar
defined term used for the purposes contemplated herein) in the relevant agreement relating to the
applicable Eligible Portfolio Investment, provided that such adjustments are usual and customary
and substantially comparable to market terms for substantially similar debt of other similarly
situated borrowers at the time such relevant agreements are entered into as reasonably
determined in good faith by the Borrower.
“Eligible Liens” has the meaning assigned to such term in Section 1.01 of this
Agreement.
“Eligible Portfolio Investment” has the meaning assigned to such term in
Section 1.01 of this Agreement.
“First Lien Bank Loan” means a Bank Loan that is entitled to the benefit of a first
lien and first priority perfected security interest on all or substantially all of the assets of the
respective borrower and guarantors obligated in respect thereof, and which has the most senior
pre-petition priority in any bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceedings; provided, however, that, in the case of accounts receivable and inventory (and the
proceeds thereof), such lien and security interest may be second in priority to a Permitted Prior
Working Capital Lien; and further provided that any portion of such a Bank Loan (other than a
Performing Broadly Syndicated Loan) which has a total debt to EBITDA ratio above 4.50 to
1.00 will, in each case, have the advance rates of a Second Lien Bank Loan applied to such
portion and such portion of such Bank Loan which has a total debt to EBITDA ratio above 6.00
to 1.00 will, in each case, have the advance rates of a Mezzanine Investment applied to such
portion. For the avoidance of doubt, in no event shall a First Lien Bank Loan include a Last Out
Loan.
“High Yield Securities” means debt Securities, in each case (a) issued by public
or private issuers, (b) issued pursuant to an effective registration statement or pursuant to Rule
144A under the Securities Act (or any successor provision thereunder) and (c) that are not Cash
Equivalents, Mezzanine Investments (described under clause (i) of the definition thereof) or
Bank Loans.
“Last Out Loan” means, with respect to any loan that would otherwise qualify as a
First Lien Bank Loan but is a term loan structured in a first out tranche and a last out tranche
(with the first out tranche entitled to a lower interest rate but priority with respect to payments),
that portion of such Bank Loan that is the last out tranche; provided that:
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(a) such last out tranche is entitled (along with the first out tranche) to the benefit
of a first lien and first priority perfected security interest on all or substantially all of the assets of
the respective borrower and guarantors obligated in respect thereof (subject to customary
exceptions), and which has the most senior pre-petition priority in any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceedings (taking into account the
payment priority of the first out tranche and subject to customary permitted liens as contemplated
by the applicable credit facility documents);
(b) the ratio of (x) the amount of the first out tranche to (y) EBITDA of the
underlying obligor does not at any time exceed 2.25 to 1.00;
(c) such last out tranche (i) gives the holders of such last out tranche full
enforcement rights during the existence of an event of default (subject to customary exceptions,
including standstill periods and if the holders of the first out tranche have previously exercised
enforcement rights), (ii) shall have the same maturity date as the first out tranche, (iii) is entitled
to the same representations, covenants and events of default as the holders of the first out tranche
(subject to customary exceptions), and (iv) provides the holders of such last out tranche with
customary protections (including, without limitation, consent rights with respect to (1) any
increase of the principal balance of the first out tranche, (2) any increase of the margins (other
than as a result of the imposition of default interest) applicable to the interest rates with respect to
the first out tranche, (3) any reduction of the final maturity of the first out tranche, and (4)
amending or waiving any provision in the underlying loan documents that is specific to the
holders of such last out tranche); and
(d) such first out tranche is not subject to multiple drawings (unless, at the time of
such drawing and after giving effect thereto, the ratio referenced in clause (b) above is not
exceeded).
For clarity, any last out loan that complies with subsection (a) above, but fails to
qualify under any of (b), (c) and/or (d) above, will have the advance rates of a Second Lien Bank
Loan (to the extent it otherwise meets the definition of Second Lien Bank Loan) applied to such
Loan.
“Letter of Credit Collateral Account” has the meaning set forth in the definition of
“Cash Collateralize”.
“Long-Term U.S. Government Securities” means U.S. Government Securities
maturing more than three months from the applicable date of determination.
“Mezzanine Investments” means (i) debt Securities (including convertible debt
Securities (other than the “in-the-money” equity component thereof)) (a) issued by public or
private Portfolio Companies, (b) issued without registration under the Securities Act, (c) not
issued pursuant to Rule 144A under the Securities Act (or any successor provision thereunder),
(d) that are not Cash Equivalents and (e) contractually subordinated in right of payment to other
debt of the same Portfolio Company and (ii) a loan that is not a First Lien Bank Loan, a Last Out