Execution Version
AMENDMENT NO. 1
to
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO REVOLVING CREDIT AND SECURITY AGREEMENT
(this "Amendment") is made as of July 12, 2013 by and among FIRST TRUST SENIOR
FLOATING RATE INCOME FUND II (the "Borrower"), LIBERTY STREET FUNDING LLC, as
the Conduit Lender (the "Lender"), THE BANK OF NOVA SCOTIA, as Secondary Lender
(the "Secondary Lender"), and THE BANK OF NOVA SCOTIA, as Agent (the "Agent")
under that certain Revolving Credit and Security Agreement dated as of July 13,
2012 by and among the Borrower, the Lender, the Secondary Lender and the Agent
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"). Defined terms used herein and not otherwise defined herein
shall have the meaning given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lender, the Secondary Lender and the
Agent are parties to the Credit Agreement;
WHEREAS, the Borrower and the Agent are parties to the Fee Letter
dated as of July 13, 2012 executed in connection with the Credit Agreement (as
amended, restated, supplemented or otherwise modified from time to time, the
"Fee Letter"); and
WHEREAS, the Borrower has requested that the Lender, the Secondary
Lender and the Agent agree to amend the Credit Agreement and the Fee Letter in
certain respects, and the Lender, the Secondary Lender and the Agent agree to so
amend the Credit Agreement and the Fee Letter.
NOW, THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Amendments to the Credit Agreement. Subject to the satisfaction
of the conditions precedent set forth in Section 3 below, the Credit Agreement
is hereby amended as follows:
1.1. Section 1.01 of the Credit Agreement is hereby amended to insert the
following new defined term in appropriate alphabetical order:
""Defaulted Asset" means an Asset, (a) other than a DIP Loan Asset,
the Obligor of which is the subject of a bankruptcy, insolvency,
liquidation or other similar proceeding, (b) in respect of which there is
a default or a breach of a material provision, in each case beyond any
applicable grace period, under the agreements or documents evidencing,
securing, governing or executed in connection with such Asset or (c) in
respect of which a "default" or "event of default" has occurred and is
continuing under the agreements or documents evidencing, securing,
governing or executed in connection with such Asset."
1.2. The proviso in the definition of "Borrowing Base Eligible Asset"
appearing in Section 1.01 of the Credit Agreement is hereby amended to insert
the following at the beginning of clause (i) thereof, before the words "a
Derivatives Transaction": "a Defaulted Asset,".
1.3. The definition of "Distressed Bond Asset" appearing in Section 1.01
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
""Distressed Bond Asset" means, as of any date of determination, a
Bond Asset which is rated less than "Ca" by Xxxxx'x or less than "CC" by
S&P or which, if unrated, is in the reasonable judgment of the Adviser, of
equivalent credit quality."
1.4. The definition of "Distressed Loan Asset" appearing in Section 1.01
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
""Distressed Loan Asset" means, as of any date of determination, a
Loan Asset (a) in respect of which the related Obligor is rated less than
"Ca" by Xxxxx'x or less than "CC" by S&P or which, if unrated, is in the
reasonable judgment of the Adviser, of equivalent credit quality or (b)
which is otherwise classified by the Adviser or the Borrower as
"distressed" or "non-performing"."
1.5. The definition of "Secondary Lender Stated Expiration Date" appearing
in Section 1.01 of the Credit Agreement is hereby amended to delete therefrom
the date "July 12, 2013" and insert therefor the following date: "July 11,
2014".
1.6. The definition of "Total Commitment" appearing in Section 1.01 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
""Total Commitment" means (i) from the date hereof to but excluding
July 12, 2013, $175,000,000 and (ii) from and after July 12, 2013,
$190,000,000, in each case as such amount may be reduced pursuant to
Section 2.10. References to the unused portion of the Total Commitment
shall mean, at any time, the Total Commitment then in effect, minus the
outstanding principal amount of the Advances."
1.7. Schedule VI of the Credit Agreement is hereby amended and restated in
its entirety as set forth on Schedule VI hereto. In addition, the Agent, the
Lenders and the Secondary Lender hereby waive any Event of Default arising prior
to the date hereof due to Xxxx X. Xxxxxxx'x state of residence having been
incorrectly listed on Schedule VI.
2. Amendments to Fee Letter. Subject to the satisfaction of the
conditions precedent set forth in Section 3 below, the Fee Letter is hereby
amended as follows:
2.1. Paragraph 1 of the Fee Letter is hereby amended to delete therefrom
the percentage "0.40%" and to insert therefor the following percentage: "0.35%".
2.2. Paragraph 2 of the Fee Letter is hereby amended to delete therefrom
the percentage "0.40%" and to insert therefor the following percentage: "0.35%".
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3. Conditions of Effectiveness. The effectiveness of this Amendment
is subject to the conditions precedent that:
(a) the Agent shall have received:
(i) duly executed counterparts of this Amendment from each of the
Borrower, the Lender, the Secondary Lender and the Agent;
(ii) a certificate of a Responsible Officer of the Borrower
certifying (i) as to its declaration of trust, by-laws,
Valuation Procedures and Prospectus, (ii) as to the
resolutions of its Trustees (in form and substance reasonably
acceptable to the Agent) authorizing the execution and
delivery of this Amendment and performance of this Amendment
and the Credit Agreement and the Fee Letter as amended hereby,
(iii) as to the incumbency and specimen signatures of the
officers authorized to execute this Amendment and any other
documents delivered in connection herewith on behalf of the
Borrower, (iv) that upon the effectiveness of this Amendment
and after giving effect hereto, no Default or Event of Default
has occurred and is continuing and (v) that upon the
effectiveness of this Amendment and after giving effect
hereto, all representations and warranties of the Borrower
made in the Program Documents to which it is a party, as
amended by this Amendment, are true and correct in all
material respects (or, in the case of those representations
and warranties that are qualified with materiality or Material
Adverse Effect, true and correct in all respects);
(iii) favorable written opinions of New York and Massachusetts
counsel for the Borrower, in each case in form and substance
reasonably acceptable to the Agent; and
(iv) such other documents, instruments and agreements as the Agent
shall reasonably request; and
(b) the Conduit Lender shall have received an amendment fee equal to
0.05% of the Total Commitment in effect on the date hereof (after
giving effect to this Amendment), which fee shall be in addition to,
and not in lieu of any other fees, expenses, reimbursements,
indemnities and any other amounts payable by the Borrower under or
in connection with the Credit Agreement and shall be non-refundable
once paid.
4. Representations and Warranties of the Borrower.
4.1. The Borrower hereby represents and warrants that this Amendment, and
the Credit Agreement and the Fee Letter as previously executed and as amended
hereby, constitute legal, valid and binding obligations of the Borrower and are
enforceable against the Borrower in accordance with their terms (except as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally and general principles
of equity).
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4.2. Upon the effectiveness of this Amendment and after giving effect
hereto, the Borrower hereby (i) reaffirms all covenants, representations and
warranties made in the Program Documents to which it is a party, as amended
hereby, and agrees that all such representations and warranties are true and
correct in all respects with respect to representations and warranties
containing qualifications as to materiality or Material Adverse Effect, and true
and correct in all material respects with respect to representations and
warranties without qualifications as to materiality or Material Adverse Effect,
in each case as of the effective date of this Amendment and (ii) certifies that
no Default or Event of Default has occurred and is continuing.
5. Effect on the Credit Agreement.
5.1. Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference to the Credit Agreement in the Credit Agreement
(including any reference therein to "this Agreement" "hereunder," "hereof,"
"herein" or words of like import referring thereto) or in any other Program
Document shall mean and be a reference to the Credit Agreement as amended
hereby.
5.2. Upon the effectiveness of Section 2 hereof, on and after the date
hereof, each reference to the Fee Letter in the Fee Letter (including any
reference therein to "this Fee Letter" "hereunder," "hereof," "herein" or words
of like import referring thereto) or in any other Program Document shall mean
and be a reference to the Fee Letter as amended hereby.
5.3. Except as specifically amended above, the Credit Agreement, the Fee
Letter and all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
5.4. The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Agent, the Lender or
the Secondary Lender, nor constitute a waiver of any provision of the Credit
Agreement, the Fee Letter or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same agreement. Delivery of an executed counterpart of this Amendment by
facsimile or in PDF format shall be deemed as effective as delivery of an
originally executed counterpart.
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9. The Borrower's Declaration of Trust is on file with the Secretary
of the Commonwealth of Massachusetts. This Amendment is executed on behalf of
the Borrower by the Borrower's officers as officers and not individually and the
obligations imposed upon the Borrower by this Agreement are not binding upon any
of the Borrower's trustees, officers or shareholders individually but are
binding only upon the assets and property of the Borrower.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
FIRST TRUST SENIOR FLOATING RATE
INCOME FUND II, as the Borrower
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1
TO REVOLVING CREDIT AND SECURITY AGREEMENT
(FIRST TRUST SENIOR FLOATING RATE INCOME FUND II)
LIBERTY STREET FUNDING LLC,
as the Lender
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1
TO REVOLVING CREDIT AND SECURITY AGREEMENT
(FIRST TRUST SENIOR FLOATING RATE INCOME FUND II)
THE BANK OF NOVA SCOTIA,
as the Secondary Lender
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA,
as the Agent
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1
TO REVOLVING CREDIT AND SECURITY AGREEMENT
(FIRST TRUST SENIOR FLOATING RATE INCOME FUND II)
SCHEDULE VI
JURISDICTION OF FORMATION
Massachusetts
PRINCIPAL OFFICE; TRUSTEE LOCATIONS
000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
NAMES USED BY THE BORROWER
First Trust/Four Corners Senior Floating Rate Income Fund II
NAMES AND STATES OF RESIDENCE OF TRUSTEES
Xxxxxxx X. Xxxxxxxx - Illinois
Xxxxxx X. Xxxxxx - Illinois
Xxxx X. Xxxxxxx - Georgia
Xxxxxx X. Xxxxx - Illinois
Xxxxx X. Xxxxx - Illinois
