as the Administrative Agent, Letter of Credit Issuer, a Lender and the Lead Arranger
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT is dated as of August 14, 2019, by and among AG TWIN BROOK BDC, INC., a Delaware corporation (the “Initial Borrower” and, collectively, with any other Borrower becoming party hereto (including Qualified Borrowers), the “Borrowers” and each, a “Borrower”), the banks and financial institutions from time to time party hereto as Lenders, WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as the Administrative Agent (as hereinafter defined) for the Secured Parties, a Letter of Credit Issuer (as hereinafter defined), Lead Arranger (in such capacity, “Lead Arranger”) and a Lender.
| A. | The Initial Borrower has requested that the Lenders make loans and cause the issuance of letters of credit to provide working capital to the Initial Borrower and to any other Borrower becoming a party hereto for purposes permitted under the Constituent Documents (as defined below) of the Credit Parties (as defined below). |
| B. | The Lenders are willing to make loans and to cause the issuance of letters of credit upon the terms and subject to the conditions set forth in this Credit Agreement. |
NOW, THEREFORE, in consideration of the mutual promises herein contained and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
| 1.1 | Defined Terms. For the purposes of the Loan Documents, unless otherwise expressly defined, the following terms shall have the meanings assigned to them below: |
“Account Bank” means (a) Bank of America, N.A. or (b) any other Eligible Institution that enters into a Control Agreement in accordance with Section 5.2(b).
“Adequately Capitalized” means compliance with the minimum capital standards for bank holding companies to be “adequately capitalized” for purposes of the Bank Holding Company Act of 1956, as amended, and regulations promulgated thereunder.
“Adjusted LIBOR” means, for any Loan, for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to: (a) the quotient obtained by dividing: (i) LIBOR for such Loan for such Interest Period; by (ii) one (1) minus the LIBOR Reserve Requirement for such Loan for such Interest Period; plus (b) the Applicable Margin. If the calculation of clause (a) of Adjusted LIBOR results in a rate for such clause (a) of Adjusted LIBOR less than zero (0), then clause (a) of Adjusted LIBOR shall be deemed to be zero (0) for all purposes of the Loan Documents.
“Administrative Agent” means Wells Fargo, until the appointment of a successor “Administrative Agent” pursuant to Section 11.9 and, thereafter, shall mean such successor Administrative Agent.
“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
“Affiliate” of any Person means any other Person that, at any time, directly or indirectly, controls or is controlled by, or is under common control with, such Person. For the purpose of this definition, “control” and the correlative meanings of the terms “controlled by” and “under common control with” when used with respect to any specified Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting shares, partnership interests, shareholder interests, membership interests or by contract or otherwise. For purposes of Sections 8.11 and 9.23, no portfolio company of any fund managed or advised by the Fund Advisor or its Affiliates shall be considered an Affiliate.
“Agency Services Address” means the address for the Administrative Agent set forth in Section 12.6, or such other address as may be identified by written notice from the Administrative Agent to the Borrowers and the Lenders from time to time.
“Agent-Related Person” has the meaning provided in Section 11.3.
“Agents” means, collectively, the Administrative Agent, the Lead Arranger and any successors and assigns in such capacities.
“Aggregate Outstanding Trade Allocation” means, as of any date of determination, the aggregate Trade Allocations outstanding on such date.
hereto.
“Allocation Memo” means an allocation memo substantially in the form of Exhibit S
“Alternative Currency” means any of Euros, Sterling, Canadian Dollars and any other currency requested by the Borrowers and approved by the Administrative Agent and the Lender in their sole discretion and, in the case of a Letter of Credit, the Letter of Credit Issuer in its sole discretion.
“Alternative Investment Vehicle” means an entity created in accordance with the Constituent Documents of the Borrowers or the Guarantors or otherwise thereunder to make Investments.
“Annual Valuation Period” means the “annual valuation period” as defined in 29 C.F.R.
§2510.3-101(d)(5) as determined for each Borrower and each Guarantor, as applicable.
“Anti-Corruption Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended; and (c) any other anti-bribery or anti- corruption laws, regulations or ordinances in any jurisdiction in which any Credit Party or any of its Subsidiaries is located or doing business.
“Anti-Money Laundering Laws” means Applicable Law in any jurisdiction in which any Credit Party or any of its Subsidiaries are located or doing business that relates to money
laundering or terrorism financing, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.
“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
“Applicable Margin” means (a) with respect to LIBOR Rate Loans, one hundred fifty
| (150) | basis points (1.50%) per annum; (b) with respect to Reference Rate Loans, fifty (50) basis points (0.50%) per annum; and (c) with respect to Letter of Credit fees one hundred fifty (150) basis points (1.50%) per annum. |
“Applicable Requirement” means each of the following requirements:
| (a) | such Investor (or such Investor’s Sponsor, Responsible Party or Credit Provider, if applicable) shall be a Rated Investor, and such Investor (or such Investor’s Sponsor, Responsible Party or Credit Provider, as applicable) shall have a Rating of BBB/Baa2 or higher; and |
| (b) | if such Investor (or such Investor’s Sponsor, Responsible Party or Credit Provider, if applicable) is: |
| (i) | a Bank Holding Company, it shall have Adequately Capitalized status or better; |
| (ii) | an insurance company, it shall have a Best’s Financial Strength Rating of A- or higher; |
| (iii) | a Pension Plan Investor or Governmental Plan Investor, or the trustee or nominee of a Pension Plan Investor or a Governmental Plan Investor, such Pension Plan Investor or Governmental Plan Investor, as applicable, shall have a minimum Funding Ratio based on the Rating of its Sponsor or Responsible Party, as applicable, as follows: |
Sponsor/Responsible Party Rating Minimum Funding Ratio
A-/A3 or higher No minimum
BBB/Baa2 to BBB+/Baa1 90%; or
| (iv) | an Endowment Fund Investor, its Sponsor shall either (x) be a party to the Subscription Agreement of such Endowment Fund Investor and jointly and severally liable for such Endowment Fund Investor’s Unfunded Capital Commitment or (y) guarantee the obligations of such Endowment Fund Investor to make its Unfunded Capital Commitment pursuant to an unconditional guarantee or other Credit Link Documents in form and substance satisfactory to the Administrative Agent in its sole discretion. |
The first Rating indicated in each case above is the S&P Rating and the second Rating indicated in each case above is the Moody’s Rating. In the event that the S&P and Moody’s
Ratings are not equivalent, the Applicable Requirement shall be based on the lower of the two. If any such Person has only one Rating from either S&P or Moody’s, then that Rating shall apply. If the Rating of any Investor (or such Investor’s Sponsor, Responsible Party or Credit Provider, as applicable) falls below the Rating required by this definition, then such Investor shall be deemed to have failed the Applicable Requirement.
“Assignee” has the meaning provided in Section 12.11(b).
“Assignment and Assumption” means the agreement contemplated by Section 12.11(b), pursuant to which any Lender assigns all or any portion of its rights and obligations hereunder, which agreement shall be substantially in the form of Exhibit H.
“Attributable Indebtedness” means, on any date of determination, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease, the capitalized amount or principal amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease.
“Availability Period” means the period commencing on the Closing Date and ending on the Maturity Date.
“Available Commitment” means, at any time of determination, the lesser of: (a) the Maximum Commitment then in effect; and (b) the Borrowing Base, minus, in either case, the FX Reserve Amount.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank Holding Company” means a “bank holding company” as defined in Section 2(a) of the Bank Holding Company Act of 1956, as amended from time to time and any successor statute or statutes, or a non-bank subsidiary of such bank holding company.
“Basel III” means (a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated, (b) the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated and (c) any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.
“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrowers giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for Dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero (0), the Benchmark Replacement will be deemed to be zero (0) for the purposes of this Credit Agreement.
“Benchmark Replacement Adjustment” means, with respect to any replacement of LIBOR with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero (0)) that has been selected by the Administrative Agent and the Borrowers giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Reference Rate”, the definition of “Interest Period”, timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement 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 Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Credit Agreement).
“Benchmark Replacement Date” means the earlier to occur of the following events with respect to LIBOR: (a) in the case of clause (a) or clause (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of LIBOR permanently or indefinitely ceases to provide LIBOR; or (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the date of the public statement or publication of information referenced therein.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to LIBOR: (a) a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely, provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide LIBOR; (b) a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or (c) a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR announcing that LIBOR is no longer representative.
“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrowers, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.
“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR has not been replaced with a Benchmark Replacement, the period (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR for all purposes hereunder in accordance with Section 4.4 and
(b) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes hereunder pursuant to Section 4.4.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in a form as agreed to by the Administrative Agent.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Best’s Financial Strength Rating” means a “Best’s Financial Strength Rating” by A.M. Best Company.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of such party.
“Borrower” and “Borrowers” have the meanings provided in the first paragraph hereof. “Borrower Party” has the meaning provided in Section 11.1(a).
“Borrowing” means a disbursement made by the Lenders of any of the proceeds of the Loans, and “Borrowings” means the plural thereof.
“Borrowing Base” means, at any time of determination, the lesser of (a)(i) the sum of (x) ninety percent (90%) of the aggregate Unfunded Capital Commitments of the Included Investors, plus (y) sixty five percent (65%) of the aggregate Unfunded Capital Commitments of the Designated Investors, in each case as such Unfunded Capital Commitments are first reduced by all applicable Concentration Limits, minus (ii) the Aggregate Outstanding Trade Allocation, and
(b) the product of (i) the aggregate Unfunded Capital Commitments of the Investors multiplied by
(ii) (x) one (1) minus (y) a fraction, the numerator of which is the Unfunded Capital Commitment of the single Investor with the largest Unfunded Capital Commitment and the denominator of which is the aggregate Unfunded Capital Commitments of all Investors. For the avoidance of doubt, the Unfunded Capital Commitments of Excluded Investors shall be excluded from the Borrowing Base at all times.
“Borrowing Base Certificate” means the certification and spreadsheet setting forth the calculation of the Available Commitment in the form of Exhibit A.
“Business Day” means (a) for all purposes other than as set forth in clauses (b), (c) and (d) below, any day of the year except: a Saturday, Sunday or other day on which commercial banks in New York City or Charlotte, North Carolina, are authorized or required by Applicable Law to close; and (b) if such day relates to any interest rate settings as to a LIBOR Rate Loan, any fundings, disbursements, settlements and payments in respect of any LIBOR Rate Loan, or any other dealings to be carried out pursuant to this Credit Agreement or the other Loan Documents in respect of any such LIBOR Rate Loan (or any Reference Rate Loan as to which the interest rate is determined by reference to LIBOR), any day that is a Business Day described in clause (a) above and that is also a day for trading by and between banks in Dollar deposits in the London interbank market; (c) in respect of Loans or payments under this Credit Agreement in Euros or Sterling (if applicable) or the issuance of any Letters of Credit by any branch of the Letter of Credit Issuer in the European Union, any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euros (if applicable); and
(d) if such day relates to any dealings in an Alternative Currency to be carried out pursuant to this Credit Agreement, any day in which banks are open for foreign currency exchange business in the principal finance center of the country of such Alternative Currency.
“Bylaws” means the bylaws of Initial Borrower, as amended or restated from to time to time as permitted hereunder.
“Canadian Dollar” and “CAD” mean the lawful currency of Canada.
“Capital Call” means a call upon any or all of the Investors for payment of all or any portion of the Capital Commitments pursuant to and in accordance with, as applicable, the Constituent Documents of the Fund Parties and the Subscription Agreements of the Investors. “Capital Calls” means, where the context may require, all Capital Calls, collectively.
“Capital Call Termination Event” means, for any Fund Party, as applicable, the occurrence of any event, in accordance with the Constituent Documents of such Borrower (including as a result of any provision in any Side Letter), that, unless waived or cured, results in
the termination of the ability (of the applicable Borrower, General Partner or the Administrative Agent, as applicable) to make Capital Calls for the repayment of the Obligations.
“Capital Commitment” means the capital commitment of the Investors to the Fund Parties in the amount set forth in the applicable Constituent Document or the applicable Subscription Agreement. “Capital Commitments” means, where the context may require, all Capital Commitments, collectively.
“Capital Contribution” means the amount of cash actually contributed by an Investor to the Fund Parties with respect to its Capital Commitment as of the time such determination is made, less amounts refunded to such Investor in accordance with the applicable Fund Party’s Constituent Documents or Subscription Agreement, as applicable. “Capital Contributions” means, where the context may require, all Capital Contributions, collectively.
“Capital Lease” means any lease of any property by any Person or any of its Subsidiaries, as lessee, that should, in accordance with GAAP, be classified and accounted for as a capital lease on a consolidated balance sheet of such Person and its Subsidiaries.
“Capital Return Certification” means the delivery of an updated Borrowing Base Certificate which includes, in the spreadsheet calculating the Available Commitment, an additional column depicting the Returned Capital distributed to each Investor.
“Capital Return Notice” means the written notice delivered to an Investor by or on behalf of any Credit Party for the purpose of making a return of capital pursuant to the applicable Fund Party’s Constituent Documents. Such notice shall be in a form that includes: (a) the amount of the Capital Contribution that is being returned to such Investor and (b) such Investor’s new Uncalled Capital Commitment after giving effect to such return of capital. “Capital Return Notices” means, where the context may require, all Capital Return Notices, collectively.
“Cash Collateral Account” means each deposit account held at the Administrative Agent for the purposes of holding Cash Collateral that is subject to an account control agreement in form and substance satisfactory to the Administrative Agent and the Letter of Credit Issuer.
“Cash Collateralize” means to deposit in a Cash Collateral Account or to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Letter of Credit Issuer or the Lenders, as collateral for the Letter of Credit Liability or obligations of the Lenders to fund participations in respect of the Letter of Credit Liability, cash or deposit account balances, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Letter of Credit Issuer. “Cash Collateral” and “Cash Collateralize” shall have meanings correlative to the foregoing and shall include the proceeds of such Cash Collateral.
“Cash Control Event” shall occur if, on any date of determination, (a) an Event of Default has occurred and is continuing; (b) a Material Potential Default has occurred and is continuing; or
(c) a mandatory prepayment has been triggered pursuant to Section 3.5(b), irrespective of whether such prepayment has become due and payable under the grace periods afforded in Section 3.5(b).
“CDOR” has the meaning provided in the definition of LIBOR.
“Change in Law” means the occurrence, after the date of this Credit Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued 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 or issued.
“Closing Date” means the date hereof; provided that all of the conditions precedent set forth in Section 6.1 shall be satisfied or waived by the Lenders in writing.
“Collateral” means all of the collateral security for the Obligations pledged or granted pursuant to the Collateral Documents.
“Collateral Account” means, for each Fund Party, the account listed on Schedule I with respect to such Fund Party, which account shall be solely used for receipt of proceeds from Capital Calls. “Collateral Accounts” means, where the context requires, all Collateral Accounts, collectively.
“Collateral Account Pledge” means each pledge of a Collateral Account, substantially in the form of Exhibit D, made by a Fund Party in favor of the Administrative Agent, pursuant to which such Fund Party has granted to the Administrative Agent for the benefit of the Secured Parties, a first priority security interest and Lien in and to a Collateral Account, as the same may be amended, supplemented or modified from time to time.
“Collateral Documents” has the meaning provided in Section 5.1.
“Commitment” means, for each Lender, the amount set forth on Schedule II hereto or on its respective Assignment and Assumption or Lender Joinder Agreement, as the same may be increased pursuant to Section 2.15, reduced from time to time by the Borrowers pursuant to Section 3.6 or by further assignment by such Lender pursuant to Section 12.11(b), “Commitments” means the plural thereof.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et. seq.), as amended from time to time, and any successor statute.
“Compliance Certificate” has the meaning provided in Section 8.1(b).
“Concentration Limit” means the limits on the aggregate amount of an Unfunded Capital Commitment set forth below, calculated for each Investor classification as a percentage of the aggregate Unfunded Capital Commitments of all Included Investors and Designated Investors:
Investor Classification | Concentration Limit |
Rated Included Investor (dependent on applicable Ratings below)1,2 |
| AA/Aa2 or better | 15.0% |
| A+/A1 to AA-/Aa3 | 10.0% |
| A-/A3 to A/A2 | 7.0% |
| BBB/Baa2 to BBB+/Baa1 | 5.0% |
Other Concentration Limits |
| Unrated Included Investors | 5.0-15.0%3 |
| Designated Investors | 5.0% |
| Aggregate Designated Investors | 50.0% |
provided, that, for purposes of calculating the above Concentration Limits for any Investor, each Investor and its investing Affiliates shall be treated as a single Investor; and provided, further that the above Concentration Limits for Included Investors shall only apply on and after February 14, 2020.
The first Rating indicated in each case above is the S&P Rating, and the second Rating indicated in each case above is the Moody’s Rating. In the event that the S&P and Moody’s Ratings are not equivalent, the applicable Rating for purposes hereof shall be based on the lower of the two. If any such Person has only one Rating from either S&P or Moody’s, then that Rating shall apply.
“Confidential Information” means, at any time, all data, reports, interpretations, forecasts and records containing or otherwise reflecting information and concerning the Credit Parties or any Investor which is not available to the general public, together with analyses, compilations, studies or other documents, which contain or otherwise reflect such information made available by or on behalf of the Credit Parties pursuant to this Credit Agreement orally or in writing to the Administrative Agent or any Lender or their respective attorneys, certified public accountants or agents, but shall not include any data or information that: (a) was or became generally available to the public at or prior to such time; or (b) was or became available to the Administrative Agent or a Lender or to the Administrative Agent’s or Lender’s respective attorneys, certified public accountants or agents on a non-confidential basis from the Credit Parties or any Investor or any other source at or prior to such time.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
_________________________
1 The Ratings for such Investor will be the lower of any Rating of such Investor. If such Investor has only one Rating, that Rating shall apply.
2 For any Investor that is an unrated subsidiary of a rated parent, acceptable Credit Link Documents from the rated parent entity will be required in order to apply the Concentration Limit based on the Ratings of the parent.
3 Such Concentration Limit for the applicable Investor to be determined by the Lenders in their sole discretion on the date such Investor is designated as an Unrated Included Investor.
“Constituent Documents” means, (a) for the Initial Borrower, the Operative Documents; and (b) for any Person, its constituent or organizational documents and any governmental or other filings related thereto, including: (i) in the case of any limited partnership, exempted limited partnership, joint venture, trust or other form of business entity, the limited partnership agreement, exempted limited partnership agreement, joint venture agreement, articles of association or other applicable agreement of formation and any agreement, instrument, filing, registration or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state or jurisdiction of its formation; (ii) in the case of any limited liability company, the articles of formation, limited liability company agreement and/or operating agreement for such Person; and (iii) in the case of a corporation or an exempted company, the certificate or articles of incorporation or association and the bylaws for such Person, in each such case as it may be restated, modified, amended or supplemented from time to time.
“Continue”, “Continuation”, and “Continued” shall refer to the continuation pursuant to a Rollover of a LIBOR Rate Loan from one Interest Period to the next Interest Period.
“Control” means, with respect to any Person, the direct or indirect power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: (a) cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of such Person, (b) as applicable, appoint or remove all, or the majority, of the managers or other equivalent officers of such Person, or (c) give directions with respect to the operating and financial policies of such Person, which the managers or other equivalent officers of such Person are obligated to follow.
“Control Agreement” means each Control Agreement among a Fund Party, the Administrative Agent and the applicable Account Bank, as the same may be amended, supplemented or modified from time to time. “Control Agreements” means collectively each Control Agreement.
“Controlled Group” means: (a) the controlled group of corporations as defined in Section 414(b) of the Internal Revenue Code; or (b) the group of trades or businesses under common control as defined in Section 414(c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code), in each case of which the applicable Credit Party is a member.
“Conversion Notice” has the meaning provided in Section 2.3(f).
“Convert,” “Conversion,” and “Converted” shall refer to a conversion pursuant to
Section 2.3(f) or Section 4 of one Type of Loan into another Type of Loan.
“Cost of Funds” means, with respect to a Loan in an Alternative Currency, the actual cost to a Lender of funding or maintaining such Loan in the applicable currency from whatever source it may reasonably select for the relevant Interest Period.
“Cost of Funds Rate” means a rate per annum notified by the applicable Lender as soon as practicable after the occurrence of the events specified in Section 4.3 hereof which expresses as a percentage rate the actual Cost of Funds to such Lender.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning provided in Section 12.24.
“Credit Agreement” means this Revolving Credit Agreement, of which this Section 1.1
forms a part, as amended, restated, supplemented or otherwise modified from time to time.
“Credit Facility” means the credit and letter of credit facility provided to the Borrowers by the Lenders under the terms and conditions of this Credit Agreement and the other Loan Documents.
“Credit Link Documents” means such financial information and documents as may be requested by the Administrative Agent in its sole discretion, to reflect and connect the relevant or appropriate credit link or credit support of a Sponsor, Credit Provider or Responsible Party, as applicable, to the obligations of the applicable Investor to make Capital Contributions, which may include a written guaranty or such other acceptable instrument determined by the Administrative Agent in its sole discretion.
“Credit Party” means a Borrower, a Guarantor or a General Partner; and “Credit Parties” means any two or more of, or all of (as the case may be), the Borrowers, the Guarantors and the General Partners.
“Credit Provider” means a Person providing Credit Link Documents, in form and substance acceptable to the Administrative Agent in its sole discretion, of the obligations of an Investor to make Capital Contributions.
“Daily LIBOR” means, with respect to any day, the rate of interest per annum determined by the Administrative Agent based on the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other Person which takes over the administration of such rate) for deposits in Dollars in minimum amounts of at least $5,000,000 for a period equal to one month (commencing on the date of determination of such interest rate) as published by a commercially available source providing quotations of such rate as selected by the Administrative Agent from time to time at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day (rounded upward, if necessary, to the nearest whole 1/100 of 1%). If the calculation of Daily LIBOR results in a Daily LIBOR rate of less than zero (0), Daily LIBOR shall be deemed to be zero (0) for all purposes of the Loan Documents.
“Debt Limitations” means the limitations set forth in Section 9.11.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default Rate” means on any day the lesser of: (a) the applicable interest rate for such outstanding amount (including the Applicable Margin) in effect on such day (or if no interest rate is otherwise applicable, the Reference Rate) plus two percent (2%); and (b) the Maximum Rate.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 12.12(b) and Section 4.9, any Lender that
| (a) | has failed to (i) fund all or any portion of the Loans or participations in the Letter of Credit Liability required to be funded by it hereunder within two (2) Business Days of the date such Loans or participations were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Letter of Credit Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified any Credit Party, the Administrative Agent or the Letter of Credit Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Credit Parties, to confirm in writing to the Administrative Agent and the Credit Parties that it will comply with its prospective funding obligations hereunder (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 Credit Parties), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) becomes subject to a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest 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. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 12.12(b) and Section 4.9(b)) upon delivery of written notice of such determination to the Credit Parties, the Letter of Credit Issuer and each other Lender. |
“Designated Investor” means an Investor (a) that has been approved in writing as a Designated Investor by the Administrative Agent and the Lenders, each in their sole discretion, and (b) in respect of which there has been delivered to the Administrative Agent:
| (i) | a true and correct copy of the Subscription Agreement executed and delivered by such Investor substantially in the form of Exhibit U, which shall be acceptable to the Administrative Agent, together with the applicable Credit Party’s countersignature, accepting such Subscription Agreement; |
| (ii) | any Constituent Documents of the applicable Credit Party, executed and delivered by such Investor; |
| (iii) | a true and correct copy of any Side Letter duly executed and delivered by such Investor, which shall be acceptable to the Administrative Agent in its sole discretion; provided, however, that any Side Letter shall be deemed to be acceptable to the Administrative Agent if such Side Letter does not (a) affect in a manner adverse to the interests of the Lenders, any Credit Party’s, the General Partner’s (if applicable) of such Credit Party or any Investor’s (as applicable) debts, duties, obligations, and liabilities, or the rights, titles, security interests, liens, powers and privileges of such person (as applicable), in each case, relating to any Capital Calls, Capital Contributions, Capital Commitments, Unfunded Capital Commitments or any other Collateral or any time period applicable thereto, (b) except as permitted under this Credit Agreement, suspend, reduce or terminate any Investor’s Unfunded Capital Commitments or obligation to fund Capital Calls, or (c) otherwise have a material and adverse effect on the rights, titles, security interests and liens, and powers and privileges of any of the Lenders; |
| (iv) | if requested by the Administrative Agent in its sole discretion, if such Investor is organized under the laws of any jurisdiction other than the United States of America or any state thereof, a written submission to the jurisdiction of a United States Federal District Court and a United States state court, and any appellate court from any thereof, with respect to any litigation arising out of or in connection with its Subscription Agreement or any Constituent Document of the applicable Credit Party (such submission to be in form and substance satisfactory to the Administrative Agent in its sole discretion, who may in its sole discretion require an opinion of counsel that such submission is enforceable); and |
| (v) | if requested by the Administrative Agent in its sole discretion, if such Investor is a Governmental Authority or an instrumentality of or majority owned by a Governmental Authority or otherwise entitled to any sovereign or other immunity in respect of itself, its property or any such litigation in any jurisdiction, court or venue, a written waiver (in form and substance satisfactory to the Administrative Agent in its sole discretion) of any such claim of immunity arising out of or in connection with its Subscription Agreement or any Constituent Document of the applicable Credit Party; |
provided that (1) any Designated Investor in respect of which an Exclusion Event has occurred shall thereupon no longer be a Designated Investor until such time as all Exclusion Events in respect of such Investor shall have been cured and such Investor shall have been restored as a
Designated Investor in the sole discretion of the Lenders; and (2) each restoration under clause (1) of this proviso shall be subject to the satisfaction of such initial or ongoing conditions as may be specified by the Administrative Agent. The Designated Investors as of the Closing Date are those specified as being Designated Investors on Exhibit A, as in effect on the Closing Date, and Designated Investors approved by the Lenders subsequent to the Closing Date will be evidenced by an updated Exhibit A provided by the Administrative Agent to the Borrowers.
“Distribution” has the meaning provided in Section 9.17.
“Dollar Equivalent” means, at any time: (a) with respect to any amount denominated in Dollars, such amount; and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or Letter of Credit Issuer, as the case may be, at such time on the basis of the Spot Rate as of the applicable valuation date, as provided in this Credit Agreement (i.e., either the date upon which such amount is initially drawn or on the most recent Revaluation Date, as applicable) for the purchase of Dollars with such Alternative Currency.
“Dollars” and the sign “$” mean the lawful currency of the United States of America. “Early Opt-in Election” means the occurrence of: (a) (i) a determination by the
Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrowers) that the Required Lenders have determined that Dollar- denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 4.4 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and (b) (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt- in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrowers and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
“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 clause (a) or clause (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.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 12.11(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 12.11(b)(iii)).
“Eligible Institution” means any depository institution, organized under the laws of the United States or any state, having capital and surplus in excess of $200,000,000, the deposits of which are insured by the Federal Deposit Insurance Corporation to the fullest extent permitted by Applicable Law and which is subject to supervision and examination by federal or state banking authorities; provided that such institution also must have a short-term unsecured debt rating of at least P-1 from Moody’s and at least A-1 from S&P. If such depository institution publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
“EMU Legislation” means the legislative measures of the European council for the introduction of, changeover to or operation of a single or unified European currency.
“Endowment Fund Investor” means an Investor that is a wholly owned, tax exempt, public charity subsidiary of a Sponsor, the assets of which Investor are not wholly disbursable for the Sponsor’s purposes on a current basis under the specific terms of all applicable gift instruments, formed for the sole purpose of accepting charitable donations on behalf of such Sponsor and investing the proceeds thereof.
“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to the environment and its effect on human health.
“Environmental Laws” means any and all federal, foreign, state, provincial and local laws, statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities, relating to the protection of the environment and its effects on human health, including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials.
“Environmental Liability” means any claim, demand, liability (including strict liability) obligation, accusation or cause of action, or any order, violation, loss, damage (including to any Person, property or natural resources and including consequential damages), injury, judgment, penalty or fine, cost of enforcement, cost of remedial action, cleanup, restoration or any other cost or expense whatsoever (including reasonable fees, costs and expenses of attorneys, consultants, contractors, experts and laboratories) and disbursements in connection with any Environmental Claims, violation or alleged violation of any Environmental Law, the imposition of any Environmental Lien or the failure to comply in all material respects with any Environmental Requirement.
“Environmental Lien” means a Lien in favor of any Governmental Authority: (a) under any Environmental Law; or (b) for any liability or damages arising from, or costs incurred by, any Governmental Authority in response to the Release or threatened Release of any Hazardous Material.
“Environmental Requirement” means any Environmental Law, agreement, or restriction, as the same now exists or may be changed, amended, or come into effect in the future, which pertains to health, safety, or the environment, including, but not limited to ground, air, water, or noise pollution, or underground or aboveground tanks.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, and the rules and regulations promulgated thereunder, each as amended or modified from time to time.
“ERISA Investor” means an Investor that is: (a) an “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) subject to Title I of ERISA; (b) any “plan” defined in and subject to Section 4975 of the Internal Revenue Code; or (c) any entity or account whose assets include or are deemed to include the Plan Assets of one or more such employee benefit plans or plans pursuant to the Plan Asset Regulations or any other relevant legal authority.
“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.
“Euro” and “€” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
“Event of Default” has the meaning provided in Section 10.1.
“Exchange Listing” means a listing of a Borrower’s Shares on a national securities exchange.
“Excluded Investor” means any Investor that is not an Included Investor or a Designated Investor, including any Investor that is subject to an Exclusion Event that has not been waived in accordance with the provisions hereof.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by overall net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (ii) Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 4.9(b)) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 4.1, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender
immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 4.1(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Exclusion Event” means, with respect to any Included Investor or Designated Investor (or, if applicable, the Sponsor, Responsible Party or Credit Provider of such Included Investor or Designated Investor) any of the following events shall occur (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
| (a) | such Person shall: (i) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor, liquidator or other similar official of itself or of all or a substantial part of its assets; (ii) file a voluntary petition as debtor in bankruptcy or admit in writing that it is unable to pay its debts as they become due; (iii) make a general assignment for the benefit of creditors; |
(iv) file a petition or answer seeking reorganization or an arrangement with creditors or take advantage of any Debtor Relief Laws; (v) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization, or insolvency proceeding; or (vi) take personal, partnership, limited liability company, corporate or trust action, as applicable, for the purpose of effecting any of the foregoing;
| (b) | an involuntary case or other proceeding shall be commenced against such Person, seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or an order, order for relief, judgment, or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition seeking such Person’s reorganization or appointing a receiver, custodian, trustee, intervenor, or liquidator of such Person or of all or substantially all of its assets, or an order for relief shall be entered in respect of such Person in a proceeding under any Debtor Relief Law, and any such case, proceeding, order, judgment or decree shall continue unstayed and in effect for a period of sixty (60) days; |
| (c) | any final judgment or decree which in the aggregate exceeds fifteen percent (15%) of the net worth of such Person (measured as of the date of its initial designation as an Included Investor or Designated Investor, as applicable) shall be rendered against such Person, and (i) any such judgment or decree shall not be subject to payment under any applicable insurance policy or discharged, paid, bonded or vacated within thirty (30) days of issuance or (ii) enforcement proceedings shall be commenced by any creditor on any such judgment or decree and such judgment or decree shall not be stayed or otherwise be covered by insurance in an amount that would cause any uninsured potential liability not to exceed fifteen percent (15%) of the net worth of the Investor; |
| (d) | such Person shall (i) repudiate, challenge, or declare unenforceable its obligation to make contributions pursuant to its Capital Commitment or a Capital Call or such obligation shall be or become unenforceable, (ii) otherwise disaffirm any provision of its Subscription Agreement, the Constituent Documents of any applicable Fund Party or any Credit Link Document, or (iii) give any written notice of its intent to withdraw from the applicable Fund Party or that it may not fund future contributions pursuant to a Capital Call or comply with the provisions of its Subscription |
Agreement, the Constituent Documents of any applicable Fund Party, or any Credit Link Document;
| (e) | such Investor shall be declared a “defaulting investor” under the Constituent Documents of the Initial Borrower; |
| (f) | any representation, warranty, certification or statement made by such Person under its Subscription Agreement (or related Side Letter), the applicable Constituent Documents, or Credit Link Document or in any certificate, financial statement or other document delivered pursuant to this Credit Agreement executed by such Person shall prove to be untrue, inaccurate or misleading in any material respect; |
| (g) | with respect to any Included Investor only, such Investor encumbers its interest in any applicable Fund Party; |
| (h) | a default shall occur in the performance by it of any of the covenants or agreements contained in its Subscription Agreement (or related Side Letter), the applicable Constituent Documents or Credit Link Document (except as otherwise specifically addressed in this definition) and such default is not cured within ten (10) Business Days; |
| (i) | the occurrence of any circumstance or event which has a material adverse effect on the ability of such Investor to fulfill its payment obligations under its Subscription Agreement, the Constituent Document of any Fund Party or any Credit Link Document; |
| (j) | to the knowledge of a Credit Party, in the case of an Unrated Included Investor, such Investor shall fail to maintain a net worth (determined in accordance with GAAP), measured as of the end of the time period covered in such Person’s most recent financial report, of at least seventy-five percent (75%) of the net worth of such Investor, measured as of the date of its initial designation as an Included Investor; |
| (k) | such Investor shall withdraw, retire or resign from any applicable Fund Party, or its equity interest or Subscribed Interest, as applicable, is redeemed, forfeited or otherwise repurchased by the applicable Fund Party; |
| (l) | such Investor shall Transfer its equity interest in any applicable Fund Party or its Subscribed Interest in a Borrower, as applicable, or otherwise be released from its obligation under the applicable Constituent Document to make contributions pursuant to a Capital Call with respect to such Transferred interest; provided that, if such Investor shall Transfer less than all of its equity interest in any applicable Fund Party or less than all of its Subscribed Interest in a Borrower, as applicable, only the transferred portion shall be excluded from the Borrowing Base; |
| (m) | if such Investor is an ERISA Investor, any failure by its Sponsor to pay any contractual or statutory obligations or make any other payment required by ERISA or the Internal Revenue Code with respect to such ERISA Investor; |
| (n) | any Credit Party suspends, cancels, reduces, excuses, terminates or abates the Capital Commitment or any amounts due with respect to a Capital Call for such Included Investor or Designated Investor; provided, however, that to the extent such suspension, cancellation, |
reduction, excuse, termination or abatement relates solely to a portion of such Investor’s Uncalled Capital Commitment, only such suspended, cancelled, reduced, excused, terminated or abated portion shall be excluded from the Borrowing Base;
| (o) | the Uncalled Capital Commitment of such Investor ceases to be Collateral subject to a first priority perfected Lien in favor of the Administrative Agent; |
| (p) | in connection with any Borrowing or the issuance of any Letter of Credit, any Credit Party has knowledge that such Investor has requested to be excused or excluded (or is excused or has the ability to be excused (unless the applicable Side Letter explicitly states that such excuse right would not apply to the repayment of the Obligations) (and has not waived such right) pursuant to its Side Letter or otherwise) from funding a Capital Call with respect to the Investment being acquired or otherwise funded with the proceeds of the related Borrowing or Letter of Credit; provided that only the portion of such Investor’s Uncalled Capital Commitment which would otherwise be contributed to fund such Investment or repay the related Borrowing or Letter of Credit shall be excluded from the Borrowing Base; |
| (q) | such Investor becomes a Sanctioned Entity, or, to any Credit Party’s or the Administrative Agent’s knowledge, such Investor’s funds to be used in connection with funding Capital Calls are derived from illegal activities; |
| (r) | in the case of an Included Investor or such Investor’s Credit Provider, as applicable, which does not have publicly available financial information, the Administrative Agent is unable (after giving the Borrowers ten (10) Business Days’ notice thereof) to obtain updated annual financial information for such Investor or such Investor’s Credit Provider, as applicable, within one hundred twenty (120) days following the end of the applicable fiscal year of such Investor; |
| (s) | such Investor enters into a new Side Letter or amends its existing Side Letter (including any amendment via a ‘most favored nations’ clause) in a manner that is materially adverse to any Secured Party as determined by the Administrative Agent in its sole discretion; provided, however, that any Side Letter shall be deemed to be acceptable to the Administrative Agent if such Side Letter does not (i) affect in a manner adverse to the interests of the Lenders, any Credit Party’s, the General Partner’s of such Credit Party or any Investor’s (as applicable) debts, duties, obligations, and liabilities, or the rights, titles, security interests, liens, powers and privileges of such person (as applicable), in each case, relating to any Capital Calls, Capital Contributions, Capital Commitments, Unfunded Capital Commitments or any other Collateral or any time period applicable thereto, (ii) except as permitted under this Credit Agreement, suspend, reduce or terminate any Investor’s Unfunded Capital Commitments or obligation to fund Capital Calls, or (iii) otherwise have a material and adverse effect on the rights, titles, security interests and liens, and powers and privileges of any of the Lenders; |
| (t) | if such Investor is an Endowment Fund Investor, a breach or written repudiation by its Sponsor of its keepwell agreement with such Investor; |
| (u) | in the case of a Rated Included Investor, it shall fail to maintain the Applicable Requirement for such Investor required in the definition of “Applicable Requirement” in Section 1.1; or |
| (v) | such Investor shall fail to make a contribution of capital when initially due pursuant to a Capital Call, without regard to any applicable notice or cure period under the applicable Constituent Document, and such delinquency is not cured within ten (10) Business Days. |
“Facility Increase” has the meaning provided in Section 2.15(a).
“Facility Increase Fee” means the fee payable with respect to any Facility Increase in accordance with Section 2.15, as set forth in the Fee Letter.
“Facility Increase Request” means a notice in the form of Exhibit O pursuant to which the Borrowers request an increase of the Commitments in accordance with Section 2.15.
“Facility Obligations” means all present and future indebtedness, obligations, and liabilities of the Credit Parties to the Lenders and other Secured Parties (other than Specified Hedge Banks), and all renewals and extensions thereof (including, without limitation, Loans, Letters of Credit, or both), or any part thereof, arising pursuant to this Credit Agreement (including, without limitation, the indemnity provisions hereof) or represented by the Notes and each Qualified Borrower Guaranty, and all interest accruing thereon, and attorneys’ fees incurred in the enforcement or collection thereof, regardless of whether such indebtedness, obligations, and liabilities are direct, indirect, fixed, contingent, joint, several, or joint and several; together with all indebtedness, obligations and liabilities of the Credit Parties to the Lenders and other Secured Parties (other than Secured Hedge Banks) evidenced or arising pursuant to any of the other Loan Documents, and all renewals and extensions thereof, or any part thereof; provided that, the term “Facility Obligations” shall exclude obligations, liabilities and Indebtedness in respect of all Lender Hedge Agreements.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections.
“Federal Funds Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate.
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“Fee Letter” means that certain Fee Letter or Fee Letters, dated the date hereof, among the Credit Parties, the Administrative Agent and certain Lenders, as each may be amended, supplemented or otherwise modified from time to time.
“Filings” means (a) UCC financing statements, UCC financing statement amendments and UCC financing statement terminations, (b) applicable entries in the Register of Mortgages and Charges in respect of any applicable Credit Parties (other than exempted limited partnerships) formed or registered under the laws of the Cayman Islands, and notices substantially in the form of Exhibit T with respect to the applicable Collateral Documents sent to the holders of the Subscribed Interests of each Fund Party formed or registered under the laws of the Cayman Islands and (c) the substantial equivalent as reasonably determined to be necessary by the Administrative Agent in any other jurisdiction in which any Credit Party may be formed.
“Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the applicable Borrower is resident for tax purposes.
“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the Letter of Credit Issuer, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Liability other than the Letter of Credit Liability as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund Advisor” means AG Twin Brook Manager, LLC, and any successor Person that is an Affiliate acting as fund advisor under the Fund Advisor Agreement.
“Fund Advisor Agreement” means that certain Investment Management Agreement, dated as of June 26, 2019, between the Initial Borrower and the Fund Advisor.
“Fund Borrower” means the Initial Borrower. For the avoidance of doubt, a Qualified Borrower shall not be considered a Fund Borrower for the purposes of any Loan Document.
“Funding Ratio” means: (a) for a Governmental Plan Investor or other plan not covered by clause (b) below, the total net fair market value of the assets of the plan over the actuarial present value of the plan’s total benefit liabilities, as reported in such plan’s most recent audited financial statements; and (b) for a Pension Plan Investor that is subject to Form 5500 – series reporting requirements, the funding target attainment percentage reported on Schedule SB to the Form 5500 or the funded percentage for monitoring the plan’s status reported on Schedule MB to the Form 5500, as applicable, as reported on the most recently filed Form 5500 by such Pension Plan Investor with the United States Department of Labor.
“Fund Party” means a Fund Borrower or a Guarantor. “Fund Parties” means, collectively, each Fund Borrower and each Guarantor.
“FX Reserve Amount” means, at any date of determination, an amount equal to the sum of the Dollar Equivalent of the aggregate Principal Obligations denominated in Alternative Currencies multiplied by the FX Reserve Percentage for Alternative Currencies, as applicable.
“FX Reserve Percentage” means, as of any date of determination, a percentage determined in the reasonable discretion of the Administrative Agent to account for foreign exchange volatility, in each case using a methodology that is sufficient to cover the 3-month foreign exchange exposure
of the Lenders at such date of determination at a ninety-five percent (95%) confidence interval as calculated using Bloomberg BGN source data on the FXFM screen of Bloomberg (or such other screen as may from time to time be in effect); provided that, if necessary to account for foreign exchange volatility, any such percentage may be reset for any particular Alternative Currency in connection with the delivery of any revised Borrowing Base Certificate hereunder or on any Revaluation Date in the reasonable discretion of the Administrative Agent or at the reasonable request of the Borrowers, in each case using such methodology.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“General Partner” means with respect to each Fund Party that is a limited partnership or exempted limited partnership joining the Credit Facility after the Closing Date, the entity named as such Fund Party’s general partner, managing member or other similar managing fiduciary, as applicable, and any successor thereto permitted under this Credit Agreement, as set forth in its joinder documentation.
“Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
“Governmental Authority” means the government of the United States or any other nation, or of 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 bodies such as the European Union or the European Central Bank).
“Governmental Plan Investor” means an Investor that is a governmental plan as defined in Section 3(32) of ERISA.
“Guarantor” has the meaning provided in Section 6.4. “Guaranty” has the meaning provided in Section 13.1.
“Guaranty Obligations” means, with respect to the Borrowers and their Subsidiaries, without duplication, any obligation, contingent or otherwise, of any such Person pursuant to which such Person has directly or indirectly guaranteed any Indebtedness or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of any such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement condition or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, that the term Guaranty Obligations shall not include endorsements for collection or deposit in the ordinary course of business.
“Hazardous Material” means any substances or materials (a) which are or become defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human health or the environment and are or become regulated by any Governmental Authority,
(c) the presence of which require investigation or remediation under any Environmental Law or common law, (d) the discharge or emission or release of which requires a permit or license under any Environmental Law or other Governmental Approval, (e) which are deemed to constitute a nuisance or a trespass which pose a health or safety hazard to Persons or neighboring properties,
(f) which consist of underground or aboveground storage tanks, whether empty, filled or partially filled with any substance, or (g) which contain, without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
“Hedge Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, all as amended, restated, supplemented or otherwise modified from time to time.
“Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, including, for the avoidance of doubt, after applying the amount of cash collateral or other eligible collateral provided by the applicable Credit Party in accordance with the terms of such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).
“Included Investor” means an Investor (a) that either (i) meets the Applicable Requirement (or whose Credit Provider, Sponsor or Responsible Party, as applicable, meets the Applicable Requirement) and at the request of the Borrowers has been approved in writing as an Included Investor by the Administrative Agent, in its reasonable discretion (“Rated Included Investor”), or
| (ii) | does not meet the Applicable Requirement but at the request of the Borrowers has been approved in writing as an Included Investor by the Lenders, in their sole discretion (an “Unrated Included Investor”), and (b) in respect of which there has been delivered to the Administrative Agent: |
| (i) | a true and correct copy of the Subscription Agreement executed and delivered by such Investor substantially in the form of Exhibit U, which shall be acceptable to the Administrative Agent, together with the applicable Credit Party’s countersignature, accepting such Subscription Agreement; |
| (ii) | any Constituent Documents of the applicable Credit Party executed and delivered by such Investor; |
| (iii) | a true and correct copy of each Side Letter executed by such Investor, which shall be acceptable to the Administrative Agent in its sole discretion; provided, however, that any Side Letter shall be deemed to be acceptable to the Administrative Agent if such Side Letter does not (a) affect in a manner adverse to the interests of the Lenders, any Credit Party’s, the General Partner’s (if applicable) of such Credit Party or any Investor’s (as applicable) debts, duties, obligations, and liabilities, or the rights, titles, security interests, liens, powers and privileges of such person (as applicable), in each case, relating to any Capital Calls, Capital Contributions, Capital Commitments, Unfunded Capital Commitments or any other Collateral or any time period applicable thereto, (b) except as permitted under this Credit Agreement, suspend, reduce or terminate any Investor’s Unfunded Capital Commitments or obligation to fund Capital Calls, or (c) otherwise have a material and adverse effect on the rights, titles, security interests and liens, and powers and privileges of any of the Lenders; |
| (iv) | if applicable, the Credit Link Documents of such Investor’s Sponsor, Credit Provider or Responsible Party, as applicable, executed and delivered by such Person; |
| (v) | if such Investor’s Subscription Agreement, or any Constituent Document of the applicable Credit Party executed by such Investor was signed by any Credit Party or any Affiliate of any Credit Party, as an attorney-in-fact on behalf of such Investor, the Administrative Agent shall have received evidence of such signatory’s authority documentation reasonably satisfactory to the Administrative Agent; |
| (vi) | if requested by the Administrative Agent in its sole discretion, if such Investor is organized under the laws of any jurisdiction other than the United States of America or any state thereof, a written submission to the jurisdiction of a United States Federal District Court and a United States state court, and any appellate court from any thereof, with respect to any litigation arising out of or in connection with its Subscription Agreement or any Constituent Document of the applicable Credit Party (such submission to be in form and substance satisfactory to the Administrative Agent in its sole discretion, who may in its sole discretion require an opinion of counsel that such submission is enforceable); and |
| (vii) | if requested by the Administrative Agent in its sole discretion, if such Investor is a Governmental Authority or an instrumentality of or majority owned by a Governmental Authority or otherwise entitled to any sovereign or other immunity in respect of itself, its property or any such litigation in any jurisdiction, court or venue, a written waiver (in form and substance satisfactory to the Administrative Agent in its sole discretion) of any such claim of immunity arising out of or in connection with its Subscription Agreement or any Constituent Document of the applicable Credit Party and an opinion of counsel that such waiver is enforceable or that such Investor and its property is not entitled to any such immunity; |
provided that (1) any Investor in respect of which an Exclusion Event has occurred shall thereupon no longer be an Included Investor until such time as all Exclusion Events in respect of such Investor shall have been cured and such Investor shall have been restored as an Included Investor in the sole discretion of all Lenders; and (2) each restoration under clause (1) of this proviso shall be subject to the satisfaction of such initial or ongoing conditions as may be specified by the Administrative Agent. The Included Investors as of the Closing Date are those specified as being Included Investors on Exhibit A, as in effect on the Closing Date, and Included Investors approved by the Administrative Agent or Lenders, as applicable, subsequent to the Closing Date will be evidenced by an updated Exhibit A provided by the Administrative Agent to the Borrowers.
“Indebtedness” means, with respect to any Person at any date and without duplication, the sum of the following:
| (a) | all liabilities, obligations and indebtedness for borrowed money including, but not limited to, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person; |
| (b) | all obligations to pay the deferred purchase price of property or services of any such Person (including all obligations under non-competition, earn-out or similar agreements), except trade payables arising in the ordinary course of business; |
| (c) | the Attributable Indebtedness of such Person with respect to such Person’s obligations in respect of Capital Leases and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP); |
| (d) | all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); |
| (e) | all Indebtedness of any other Person secured by a Lien on any asset owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements except trade payables arising in the ordinary course of business), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; |
| (f) | ) all obligations, contingent or otherwise, of any such Person relative to the face amount of letters of credit, whether or not drawn, including without limitation, any Reimbursement Obligation, and banker’s acceptances issued for the account of any such Person; |
| (g) | all obligations of any such Person to repurchase any securities which repurchase obligation is related to the issuance thereof; |
| (h) | all net obligations of such Person under any Hedge Agreements; and |
| (i) | all Guaranty Obligations of any such Person with respect to any of the foregoing. |
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date.
“Indemnified Taxes” means (a) Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning provided in Section 12.5(b).
“Initial Borrower” has the meaning provided in the first paragraph hereof. “Interest Option” means LIBOR or the Reference Rate.
“Interest Payment Date” means: (a) with respect to any Reference Rate Loan, or any LIBOR Rate Loan based on Daily LIBOR, the first Business Day of each calendar month; (b) as to any LIBOR Rate Loan in respect of which the applicable Borrower has selected a one (1)-month, two (2)-month or three (3)-month Interest Period, the last day of such Interest Period for such LIBOR Rate Loan; (c) as to any LIBOR Rate Loan in respect of which the applicable Borrower has selected a six-month Interest Period, the last day of each third month during such Interest Period; (d) the date of any prepayment of any Loan made hereunder, as to the amount prepaid; and (e) the Maturity Date.
“Interest Period” means, (a) initially the period commencing on (and including) the date of the initial funding of such Loan and ending on (but excluding) the next following Interest Payment Date and (b) thereafter, each period commencing on (and including) an Interest Payment Date and ending on (but excluding) the next following Interest Payment Date; provided that:
| (i) | any Interest Period with respect to any Loan which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day; provided, however, if interest in respect of such Interest Period is computed by reference to LIBOR, and such Interest Period would otherwise end on a day which is not a Business Day, and there is no subsequent Business Day in the same calendar month as such day, such Interest Period shall end on the next preceding Business Day; |
| (ii) | if interest in respect of such Interest Period is computed by reference to LIBOR, and such Interest Period begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, then such |
Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and
| (iii) | in the case of any Interest Period for any Loan which commences before the Maturity Date and would otherwise end on a date occurring after the Maturity Date, such Interest Period shall end on (but exclude) such Maturity Date and the duration of each Interest Period which commences on or after the Maturity Date shall be of such duration as shall be selected by the applicable Lender in its sole discretion. |
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, and the rules and regulations promulgated thereunder, each as amended or modified from time to time.
“Investment” means “Investment” as that term is defined in the Subscription Agreements entered into by Investors in the Initial Borrower (or any analogous term of any other Fund Party’s Constituent Document).
“Investment Policies” means the investment objectives, policies, restrictions and limitations for the Initial Borrower, as the same may be changed, altered, expanded, amended, modified, terminated or restated from time to time.
“Investor” means any Person that is admitted to any Fund Party as a limited partner, general partner, member or other equity holder (including any Person that has a Subscribed Interest in a Fund Party) in accordance with the applicable Constituent Documents of such Fund Party, including, for the avoidance of doubt, any Guarantor in its capacity as a limited partner or member of a Borrower.
“Investor Information” has the meaning provided in Section 12.17. “IRS” means the U.S. Internal Revenue Service.
“ISP98” means the International Standby Practices (1998 Revision, effective January 1, 1999), International Chamber of Commerce Publication No. 590.
“Keepwell Provider” means, with respect to any Swap Obligation, a Borrower that is an “eligible contract participant” as defined in Section 1a(18) of the Commodity Exchange Act and related regulations of the Commodities Futures Trading Commission by virtue of having total assets exceeding $10,000,000 and/or satisfying any other criteria relevant to such status under said Section 1a(18) (and related regulations).
“KYC Compliant” means any Person who has satisfied all requests for information from the Lenders for “know-your-customer” and other anti-terrorism, anti-money laundering and similar rules and regulations and related policies and who would not result in any Lender being non-compliant with any such rules and regulations and related policies were such Person to enter into a banking relationship with such Lender, including any information required to be obtained by a Lender pursuant to the Beneficial Ownership Regulation.
“Lead Arranger” has the meaning provided in the first paragraph hereof.
“Lender” means Wells Fargo, in its capacity as lender and each other lender that becomes party to this Credit Agreement in accordance with the terms hereof; and collectively, the “Lenders”.
“Lender Hedge Agreement” means each Hedge Agreement entered into by and between a Borrower (or guaranteed by a Borrower) and a Lender or an Affiliate of a Lender, in each case, unless agreed in writing by the parties thereto that such Hedge Agreement is not a “Lender Hedge Agreement”, as each may be amended, restated, supplemented or otherwise modified from time to time.
“Lender Joinder Agreement” means an agreement substantially in the form of Exhibit N, pursuant to which a new Lender joins the Credit Facility as contemplated by Section 12.11(g).
“Lender Party” has the meaning provided in Section 11.1(a).
“Lending Office” means, as to any Lender, the office or offices of such Lender (or an Affiliate of such Lender) described as such in such Lender’s Administrative Questionnaire delivered to the Administrative Agent, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent.
“Letter of Credit” means any letter of credit issued by the Letter of Credit Issuer pursuant to Section 2.8 either as originally issued or as the same may, from time to time, be amended or otherwise modified or extended.
“Letter of Credit Application” means an application, in the form specified by the Letter of Credit Issuer from time to time, requesting the Letter of Credit Issuer issue a Letter of Credit.
“Letter of Credit Issuer” means Wells Fargo or any Affiliate thereof.
“Letter of Credit Liability” means, at any time of determination, the aggregate amount of the undrawn stated amount of all outstanding Letters of Credit plus the amount drawn under Letters of Credit for which the Letter of Credit Issuer and the Lenders, or any one or more of them, have not yet received payment or reimbursement (in the form of a conversion of such liability to Loans, or otherwise) as required pursuant to Section 2.8.
“Letter of Credit Sublimit” means, at any time, an amount equal to twenty-five percent (25%) of the Maximum Commitment at such time. The Letter of Credit Sublimit is a part of, and not in addition to, the Maximum Commitment.
“LIBOR” means:
| (a) | for any interest rate calculation with respect to any LIBOR Rate Loan, at the option of the Borrowers, one of the following: |
| (i) | with respect to any LIBOR Rate Loan denominated in Dollars, Daily LIBOR (which, for the avoidance of doubt, shall be determined on each Business Day in accordance with the definition thereof and shall only be available for Loans denominated in Dollars); |
| (ii) | with respect to any LIBOR Rate Loan denominated in Dollars, Euros or Sterling, the rate of interest per annum determined by the Administrative Agent based on the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other Person which takes over the administration of such rate) for deposits in Dollars for delivery on the first day of the applicable Interest Period for a period approximately equal to such applicable Interest Period as published by a commercially available source providing quotations of such rate as selected by the Administrative Agent from time to time at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period (rounded upward, if necessary, to the nearest whole 1/100 of 1%); or |
| (iii) | with respect to any LIBOR Rate Loan denominated in Canadian Dollars, the rate of interest per annum determined by the Administrative Agent based on the Canadian Deal Offered Rate as published on the applicable Reuters screen page (“CDOR”) (or any other Person which takes over the administration of such rate) for delivery on the first day of the applicable Interest Period for a period approximately equal to such applicable Interest Period as published by a commercially available source providing quotations of such rate as selected by the Administrative Agent from time to time at approximately 10:00 a.m. (Toronto time) two Business Days prior to the first day of the applicable Interest Period (rounded upward, if necessary, to the nearest whole 1/100 of 1%); and |
| (b) | for any interest rate calculation with respect to a Reference Rate Loan, Daily LIBOR. |
Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest error. If the calculation of LIBOR results in a LIBOR rate of less than zero (0), LIBOR shall be deemed to be zero (0) for all purposes of the Loan Documents.
“LIBOR Conversion Date” has the meaning provided in Section 2.3(f).
“LIBOR Rate Loan” means a Loan (other than a Reference Rate Loan) that bears interest at a rate based on LIBOR (or, if applicable pursuant to Section 4.3, the Cost of Funds Rate).
“LIBOR Reserve Requirement” means, at any time, the maximum rate at which reserves (including any marginal, special, supplemental, or emergency reserves) are required to be maintained under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) by member banks of the Federal Reserve System against “Eurocurrency liabilities” (as such term is used in Regulation D). Without limiting the effect of the foregoing, the LIBOR Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to: (a) any category of liabilities which includes deposits by reference to which Adjusted LIBOR is to be determined; or (b) any category of extensions of credit or other assets which include LIBOR Rate Loans or Reference Rate Loans bearing interest based off LIBOR. LIBOR shall be adjusted automatically on and as of the effective date of any change in the LIBOR Reserve Requirement. Each determination by the Administrative Agent of the LIBOR Reserve Requirement shall, in the absence of manifest error, be conclusive and binding.
“Lien” means any lien, mortgage, security interest, charge, tax lien, pledge, encumbrance, or conditional sale or title retention arrangement, or any other interest in property designed to secure the repayment of indebtedness, whether arising by agreement or under common law, any statute, law, contract, or otherwise.
“Loan Documents” means this Credit Agreement, the Notes (including any renewals, extensions, re-issuances and refundings thereof), each of the Collateral Documents, each Assignment and Assumption, each Lender Joinder Agreement, each Letter of Credit Application, each Letter of Credit, all Credit Link Documents, each Qualified Borrower Guaranty, the Fee Letter and such other agreements and documents, and any amendments or supplements thereto or modifications thereof, executed or delivered pursuant to the terms of this Credit Agreement or any of the other Loan Documents and any additional documents delivered in connection with any such amendment, supplement or modification.
“Loans” means the groups of LIBOR Rate Loans and Reference Rate Loans made by the Lenders to the Borrowers pursuant to the terms and conditions of this Credit Agreement, plus all payments under a Letter of Credit made to the beneficiary named thereunder (provided that, for the avoidance of doubt, such payments shall not also be included in the calculation of Letter of Credit Liability) (and certain other related amounts specified in Section 2.9 shall be treated as Loans pursuant to Section 2.9).
“Margin Stock” has the meaning assigned thereto in Regulation U.
“Material Adverse Effect” means a material adverse effect on: (a) the assets, operations, properties, liabilities (actual or contingent), condition (financial or otherwise), or business of the Fund Parties; (b) the ability of any Credit Party to perform its obligations under this Credit Agreement or any of the other Loan Documents; (c) the validity or enforceability of this Credit Agreement, any of the other Loan Documents, or the rights and remedies of the Secured Parties hereunder or thereunder taken as a whole; (d) the obligation or the ability of any Credit Party to fulfill its obligations under its Constituent Documents; or (e) the ability of the Investors (or applicable Sponsors, Responsible Parties or Credit Providers) to perform their obligations under the applicable Constituent Document, any Subscription Agreement, any Side Letter or any Credit Link Documents, as applicable.
“Material Amendment” has the meaning provided in Section 9.6.
“Material Potential Default” means any condition, act or event which, with the giving of notice or the lapse of time or both, would become an Event of Default specified in Section 10.1(a)(ii), 10.1(i), or 10.1(r).
“Maturity Date” means the earliest of: (a) the Stated Maturity Date; (b) the date upon which the Administrative Agent declares the Facility Obligations due and payable after the occurrence of an Event of Default; (c) forty-five (45) days prior to the expiration or termination of the Constituent Documents of any Fund Party; (d) (i) forty-five (45) days prior to any scheduled Capital Call Termination Event, and (ii) the date on which any Fund Party’s ability to call Capital Commitments for the purpose of repaying the Obligations otherwise expires or is terminated;
(e) the date that is thirty (30) days following the occurrence of any Exclusion Event with respect
to any Included Investor (unless such Exclusion Event has been cured or waived, as determined in the sole discretion of the Administrative Agent) unless, at such time, there are two or more Included Investors; (f) 45 days prior to the scheduled date of any Exchange Listing; and (g) the date upon which the Borrowers terminate the Commitments pursuant to Section 3.6 or otherwise.
“Maximum Aggregate Trade Allocation” means $25,000,000, as the same may be increased with the written consent of the Borrowers and all Lenders.
“Maximum Commitment” means $50,000,000, as it may be (a) reduced by the Borrowers pursuant to Section 3.6 or (b) increased from time to time by the Borrowers pursuant to Section 2.15.
“Maximum Rate” means, on any day, the highest rate of interest (if any) permitted by Applicable Law on such day.
“Maximum Trade Allocation” means, for each Lender, its Pro Rata Share of $25,000,000, as the same may be increased with the written consent of the Borrowers and the Administrative Agent.
“Memorandum” means the Initial Borrower’s Confidential Private Placement Memorandum dated May 3, 2019 (together with any appendices and supplements thereto).
“Minimum Collateral Amount” means, at any time, with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to, (a) in the case of a Defaulting Lender, 103% of the Fronting Exposure of the Letter of Credit Issuer with respect to Letters of Credit issued and outstanding at such time, and (b) with respect to other obligations of the Borrowers to Cash Collateralize Letters of Credit hereunder, 103% of the entire Letter of Credit Liability as of such time required to be Cash Collateralized, plus, with respect to any Letter of Credit in an Alternative Currency, the FX Reserve Amount related thereto.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver, amendment, modification or termination that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 12.1 and (b) has been approved by the Required Lenders.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Notes” means the promissory notes provided for in Section 3.1, and all promissory notes delivered in substitution or exchange therefor, as such notes may be amended, restated, reissued, extended or modified, and the Qualified Borrower Promissory Notes; and “Note” means any one of the Notes.
“Obligations” means all present and future indebtedness, obligations, and liabilities of the Credit Parties to the Lenders and other Secured Parties, and all renewals and extensions thereof (including, without limitation, Loans, Letters of Credit, obligations under all Lender Hedge
Agreements (other than any obligations under a Lender Hedge Agreement that are secured by cash or other security that does not constitute Collateral), or all of the foregoing), or any part thereof, arising pursuant to this Credit Agreement (including the indemnity provisions hereof) or represented by the Notes, any Lender Hedge Agreement and each Qualified Borrower Guaranty, and all interest accruing thereon, and attorneys’ fees incurred in the enforcement or collection thereof, regardless of whether such indebtedness, obligations, and liabilities are direct, indirect, fixed, contingent, joint, several, or joint and several; together with all indebtedness, obligations and liabilities of the Credit Parties to the Lenders and other Secured Parties evidenced or arising pursuant to any of the other Loan Documents, and all renewals and extensions thereof, or any part thereof.
“Operative Documents” means, with respect to the Initial Borrower, its certificate of incorporation and its Bylaws.
“Operating Company” means an “operating company” within the meaning of 29 C.F.R.
§2510.3-101(c) of the Plan Asset Regulations.
“Operating Lease” means, as to any Person as determined in accordance with GAAP, any lease of property (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.
“Other Claims” has the meaning provided in Section 5.4.
“Other Connection Taxes” means, with respect to any Recipient, 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 security interest under, or 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 Taxes” means all present or future stamp, court, documentary, excise, property, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment, grant of participation, or other transfer (other than an assignment made pursuant to Section 4.9(b)).
“Parallel Investment Vehicle” means a parallel and/or feeder partnership, real estate tax investment trust, group trust or other investment vehicle created in accordance with the Constituent Documents of any Borrower or Guarantor or otherwise thereunder.
“Participant” has the meaning provided in Section 12.11(d). “Participant Register” has the meaning provided in Section 12.11(e).
“Pending Capital Call” means any Capital Call that has been made upon the Investors and that has not yet been funded by the applicable Investor.
“Pension Plan Investor” means an ERISA Investor that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA and is subject to Title IV of ERISA or Section 412 of the Internal Revenue Code.
“Permitted Distributions” means, without duplication, (a) Distributions required to maintain the status of Borrower as a RIC or to minimize or eliminate federal Taxes (including corporate and/or excise taxes under the Internal Revenue Code) under subchapter M of the Internal Revenue Code, and (b) Distributions required to avoid federal excise taxes imposed by Section 4982 of the Internal Revenue Code and analogous state Taxes payable by Borrower.
“Person” means an individual, sole proprietorship, joint venture, association, trust, estate, business trust, corporation, company, limited liability company, limited liability partnership, limited partnership, nonprofit corporation, partnership, group, sector, sovereign government or agency, instrumentality, or political subdivision thereof, territory, or any similar entity or organization.
“Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), including any single-employer plan or multiemployer plan (as such terms are defined in Section 4001(a)(15) and in Section 4001(a)(3) of ERISA, respectively), that is subject to Title IV of ERISA or Section 412 of the Internal Revenue Code.
“Plan Asset Regulations” means 29 C.F.R. §2510.3-101, et seq., as modified by
Section 3(42) of ERISA.
“Plan Assets” means “plan assets” within the meaning of the Plan Asset Regulations. “Potential Default” means any condition, act or event which, with the giving of notice or
lapse of time or both, would become an Event of Default.
“Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.
“Principal Obligations” means the sum of (a) the aggregate outstanding principal amount of the Loans plus (b) the aggregate Letter of Credit Liability.
“Pro Rata Share” means, with respect to each Lender, the percentage obtained from the fraction: (a)(i) the numerator of which is the Commitment of such Lender; and (ii) the denominator of which is the aggregate Commitments of all Lenders; or (b) in the event the Commitments of all Lenders have been terminated: (i) the numerator of which is the sum of the Principal Obligations (or, if no Principal Obligations are outstanding, the Facility Obligations) owed to such Lender; and (ii) the denominator of which is the aggregate Principal Obligations (or if no Principal Obligations are outstanding, the Facility Obligations) owed to all of the Lenders.
“Proceedings” has the meaning provided in Section 7.9.
“Proposed Amendment” has the meaning provided in Section 9.6.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).
“QFC Credit Support” has the meaning provided in Section 12.24. “Qualified Borrower” has the meaning provided in Section 6.3.
“Qualified Borrower Guaranty” and “Qualified Borrower Guaranties” have the meanings provided in Section 6.3.
“Qualified Borrower Promissory Note” has the meaning provided in Section 6.3.
“Rated Included Investor” has the meaning provided in the definition of “Included Investor”.
“Rated Investor” means any Investor that has a Rating (or that has a Credit Provider, Sponsor or Responsible Party that has a Rating). In the event the Investor, its Credit Provider, Sponsor or Responsible Party has more than one Rating, then the lowest of such Ratings shall be the applicable Rating.
“Rating” means, for any Person, its senior unsecured debt rating (or equivalent thereof), such as, but not limited to, a corporate credit rating, issuer rating/insurance financial strength rating (for an insurance company), general obligation rating or credit enhancement program (for a governmental entity), or revenue bond rating (for an educational institution) from S&P or Moody’s.
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) the Letter of Credit Issuer, as applicable.
“Reference Rate” means the greatest of: (a) the Prime Rate plus the Applicable Margin;
| (b) | the Federal Funds Rate plus fifty basis points (0.50%) plus the Applicable Margin; and (c) except during any period of time during which LIBOR is unavailable pursuant to Section 4.2 or 4.3, one (1) month Adjusted LIBOR plus one hundred basis points (1.00%) plus the Applicable Margin. Each change in the Reference Rate shall become effective without prior notice to any Credit Party automatically as of the opening of business on the day of such change in the Reference Rate. |
“Reference Rate/Daily LIBOR Conversion Date” has the meaning provided in
Section 2.3(f).
“Reference Rate Loan” means a Loan denominated in Dollars made hereunder with respect to which the interest rate is calculated by reference to the Reference Rate.
“Register” has the meaning provided in Section 12.11(c).
“Regulation D,” “Regulation T,” “Regulation U,” and “Regulation X” means Regulation D, T, U, or X, as the case may be, of the Board of Governors of the Federal Reserve System, from time to time in effect, and shall include any successor or other regulation relating to reserve requirements or margin requirements, as the case may be, applicable to member banks of the Federal Reserve System.
“Reimbursement Obligation” means the obligation of the Borrowers to reimburse the Letter of Credit Issuer pursuant to Section 2.13 for amounts drawn under Letters of Credit.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching, or migration of Hazardous Materials into the indoor or outdoor environment, or into or out of any real property investment, including the movement of any Hazardous Material through or in indoor or outdoor the air, soil, surface water or groundwater of any real property investment.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“Removal Effective Date” has the meaning provided in Section 11.9(a)(ii). “Request for Borrowing” has the meaning provided in Section 2.3(a). “Request for Letter of Credit” has the meaning provided in Section 2.13(b).
“Requesting Hedge Bank” means a Specified Hedge Bank requesting that a Lender Hedge Agreement be allocated a Trade Allocation.
“Required Lenders” means, at any time, the Lenders holding an aggregate Pro Rata Share of greater than fifty percent (50%). The Commitments, Principal Obligations and Facility Obligations of any Defaulting Lender shall be disregarded from both the numerator and the denominator in determining Required Lenders at any time.
“Required Payment Time” means, (i) promptly on demand, and in any event within two (2) Business Days, to the extent such funds are available in the Collateral Accounts or any other account maintained by the Fund Parties; and (ii) otherwise, to the extent that it is necessary for the Credit Parties to issue a Capital Call to fund such required payment, within fifteen (15) Business Days after the Administrative Agent’s demand (but, in any event, the Credit Parties shall issue such Capital Call and shall make such payment promptly after the related Capital Contributions are received).
“Resignation Effective Date” has the meaning provided in Section 11.9(a).
“Responsible Officer” means: (a) in the case of a corporation or exempted company, any director, its president or any vice president or any other officer or the equivalent thereof (other than a secretary or assistant secretary), and, in any case where two Responsible Officers are acting on behalf of such corporation, the second such Responsible Officer may be a secretary or assistant secretary or the equivalent thereof; (b) in the case of a limited partnership or an exempted limited partnership, an officer of its general partner or an officer of an entity that has authority to act on behalf of such general partner, acting on behalf of the general partner in its capacity as general partner of such limited partnership; and (c) in the case of a limited liability company, an officer of such limited liability company or, if there is no officer, a manager, director or managing member, or the individual acting on behalf of such manager or managing member, in its capacity as manager or managing member of such limited liability company, or in each case any such other authorized officer or signatory who has the power to bind such corporation, limited partnership, exempted limited partnership, limited liability company or any other Person who has provided documentation evidencing such authority. Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.
“Responsible Party” means, for any Governmental Plan Investor: (a) if the state under which the Governmental Plan Investor operates is obligated to fund the Governmental Plan Investor and is liable to fund any shortfalls, the state; and (b) otherwise, the Governmental Plan Investor itself.
“Returned Capital” means, for any Investor, at any time, any amounts distributed to such Investor that are subject to recall as a Capital Contribution (as if such funds had never been previously called) pursuant to the Constituent Documents of the applicable Fund Party. Any amount of Returned Capital distributed to an Investor shall appear on a Capital Return Notice.
“Revaluation Date” means each of the following: (a) each date on which the Borrowing Base must otherwise be calculated pursuant to the terms of this Credit Agreement; (b) each date of a Borrowing or the issuance of a Letter of Credit; (c) each date any Exclusion Event occurs; (d) the first Business Day of each calendar month; (e) each date on which the Borrowing Base must otherwise be calculated pursuant to the terms of this Credit Agreement; and (f) solely with respect to a significant fluctuation in an Alternative Currency, each other date on which the Administrative Agent or the Borrowers shall reasonably determine as necessary with notice thereof to the other party.
“RIC” means, a Person qualifying for treatment as a “regulated investment company” under the Internal Revenue Code.
“Rollover” means the renewal of all or any part of any LIBOR Rate Loan upon the expiration of the Interest Period with respect thereto, pursuant to Section 2.3.
“Rollover Notice” has the meaning provided in Section 2.3(e).
“S&P” means S&P Global Ratings, a subsidiary of S&P Global Inc., and any successor thereto.
“Same Day Funds” means: (a) with respect to disbursements and payments in Dollars, immediately available funds; and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by Administrative Agent to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
“Sanction” or “Sanctions” means individually and collectively, respectively, any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti- terrorism laws, imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order; (b) the United Nations Security Council; (c) the European Union; (d) the United Kingdom; or (e) any other governmental authorities with jurisdiction over any Credit Party or any of its Subsidiaries.
“Sanctioned Entity” means any individual, entity, group, sector, territory or country that is the target of any Sanctions, including without limitation, any legal entity that is deemed to be a target of Sanctions based on the direct or indirect ownership or control of such entity by any other Sanctioned Entity.
“SEC” means the Securities and Exchange Commission.
“Secured Parties” means the Administrative Agent, the Letter of Credit Issuer, the Specified Hedge Banks, the Lenders and each Indemnitee.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Security Agreement” means each Security Agreement, substantially in the form of Exhibit C, made by a Fund Party and, if applicable, its General Partner in favor of the Administrative Agent, pursuant to which such Fund Party and, if applicable, its General Partner have granted to the Administrative Agent for the benefit of the Secured Parties, a first priority Lien and security interest in, and pledge of, their interests in the Collateral, as the same may be amended, amended and restated, supplemented or modified otherwise from time to time.
“SEMS” means the Superfund Enterprise Management System. “Shares” means the shares of common stock in any Fund Party.
“Side Letter” means any side letter executed by an Investor with any Credit Party or the Fund Advisor with respect to such Investor’s rights and/or obligations under its Subscription Agreement or Constituent Documents of the applicable Fund Party.
“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.
“Solvent” means, with respect to any Credit Party, as of any date of determination, that as of such date:
| (a) | the fair value of the assets of such Credit Party and, with respect to the Fund Parties, the aggregate Unfunded Capital Commitments, are greater than the total amount of liabilities, including contingent liabilities, of such Credit Party; |
| (b) | the fair value of the assets of such Credit Party and, with respect to the Fund Parties, the aggregate Unfunded Capital Commitments, are not less than the amount that will be required to pay the probable liability of the Credit Parties on their debts as they become absolute and matured; |
| (c) | such Credit Party does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay as such debts or liabilities become absolute and matured; and |
| (d) | such Credit Party is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which its assets and, with respect to the Fund Parties, the aggregate Unfunded Capital Commitments, would constitute unreasonably small capital. |
For the purposes of this definition, the amount of contingent liabilities (such as litigation, guarantees, and pension plan liabilities) at any time shall be computed as the amount which, in light of all the facts and circumstances existing at the time, represents the amount which can be reasonably expected to become an actual or matured liability and are determined as contingent liabilities in accordance with applicable federal and state laws governing determinations of insolvency.
“Specified Hedge Bank” means, with respect to any Lender Hedge Agreement, a Person that is a Lender in its capacity as a party to such Lender Hedge Agreement.
“Sponsor” means, (a) for any ERISA Investor, a sponsor as that term is understood under ERISA, specifically, the entity that established the plan and is responsible for the maintenance of the plan and, in the case of a plan that has a sponsor and participating employers, the entity that has the ability to amend or terminate the plan, and in the case of an ERISA Investor that is an individual retirement account or individual retirement annuity, the owner of such account or annuity for whose benefit the account or annuity has been established, and (b) for any Endowment Fund Investor, the state chartered, “not-for-profit” university or college that has established such fund for its exclusive use and benefit. As used herein, the term “not-for-profit” means an entity formed not for pecuniary profit or financial gain and for which no part of its assets, income or profit is distributable to, or inures to the personal benefit of, its members, directors or officers.
“Spot Rate” for a currency means, at any date of determination thereof, the rate determined by the Letter of Credit Issuer or the Administrative Agent, as applicable, to be the rate quoted by the Letter of Credit Issuer or the Administrative Agent, as applicable, as its spot rate for the purchase of such currency with another currency through its principal foreign exchange trading
office at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Administrative Agent does not have as of the date of determination a spot buying rate for any such currency.
“Stated Maturity Date” means August 12, 2022.
“Sterling” and “£” mean the lawful currency of the United Kingdom.
“Subscribed Interest” means the obligation of an Investor to purchase Shares pursuant to its Subscription Agreement up to the amount of its Unfunded Capital Commitment.
“Subscription Agreement” means a Subscription Agreement substantially in the form of Exhibit U and any related supplement thereto executed by an Investor in connection with the subscription for Shares or a partnership interest or other equity interest, as applicable, in any Fund Party, as applicable, as amended, restated, supplemented or otherwise modified from time to time; “Subscription Agreements” means, where the context may require, all Subscription Agreements, collectively.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is, at any time, otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of a Borrower.
“Supported Counterparty” means, at any time, a Borrower that, at such time, is not an “eligible contract participant” as defined in Section 1a(18) of the Commodity Exchange Act and related regulations of the Commodities Futures Trading Commission, except by virtue of the support of the Keepwell Providers under Section 12.22.
“Supported QFC” has the meaning provided in Section 12.24.
“Swap Obligation” means, with respect to any Borrower, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines, additions to tax or penalties applicable thereto.
“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Threshold Amount” means, on any date, the greater of (a) the Dollar Equivalent of
$10,000,000; and (b) the Dollar Equivalent of ten percent (10%) of the net asset value of the Borrowers as reported in the most recent financial statement provided by the Borrowers prior to such date.
“Trade Allocation” means, for any Lender Hedge Agreement, as of any date of determination, the amount of the Borrowing Base allocated to such Specified Hedge Bank for the Hedge Termination Value under such Lender Hedge Agreement as documented substantially in the form of Exhibit S.
“Transaction Information” has the meaning provided in Section 12.17.
“Transfer” means to assign, convey, exchange, pledge, sell, set-off, transfer or otherwise dispose.
“Type of Loan” means a Reference Rate Loan or a LIBOR Rate Loan.
“UCC” means the Uniform Commercial Code as adopted in the State of New York and any other state from time to time, which governs creation or perfection (and the effect thereof) of security interests in any Collateral.
“Uncalled Capital Commitment” means, with respect to any Investor at any time, such Investor’s uncalled Capital Commitment.
“Unfunded Capital Commitment” means, with respect to any Investor at any time, such Investor’s Uncalled Capital Commitment minus any portion of such Investor’s Uncalled Capital Commitment that is subject to a Pending Capital Call.
“Uniform Customs” means the Uniform Customs and Practice for Documentary Credits (2007 Revision), effective July, 2007 International Chamber of Commerce Publication No. 600.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
“Unrated Included Investor” has the meaning provided in the definition of “Included Investor”.
“U.S. Special Resolution Regimes” has the meaning provided in Section 12.24.
“U.S. Person” means any Person that is a “United States Person” as defined in
Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in
Section 4.1(f).
“Wells Fargo” has the meaning provided in the first paragraph hereof. “Withholding Agent” means any Credit Party and the Administrative Agent.
“Write-Down and Conversion Powers” means, 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.
| 1.2 | Construction. With reference to this Credit Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: |
| (a) | all terms defined in this Credit Agreement shall have the above-defined meanings when used in the Notes or any other Loan Documents or any certificate, report or other document made or delivered pursuant to this Credit Agreement, unless otherwise defined in such other document; |
| (b) | the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined; |
| (c) | whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms; |
| (d) | the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; |
| (e) | the word “will” shall be construed to have the same meaning and effect as the word “shall”; |
| (f) | any reference herein to any Person shall be construed to include such Person’s successors and assigns; |
| (g) | the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Credit Agreement in its entirety and not to any particular provision hereof; |
| (h) | all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Credit Agreement; |
| (i) | 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; |
| (j) | the term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form; |
| (k) | in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”; |
| (l) | references to a Cayman Islands exempted limited partnership taking any action, having any power or authority or owning, holding or dealing with any asset are to such partnership acting through its general partner (or, as the case may be, such general partner’s ultimate general partner); and |
| (m) | section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Credit Agreement or any other Loan Document. |
| (a) | All accounting terms not specifically or completely defined herein or in any other Loan Document shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with GAAP, applied on a consistent basis, as in effect from time to time and in a manner consistent with that used in preparing the audited financial statements required by Section 8.1(a), except as otherwise specifically prescribed herein. |
| (b) | If at any time any change in GAAP would affect the computation of any covenant (including the computation of any financial covenant) set forth in this Credit Agreement or any other Loan Document, the Credit Parties and the Administrative Agent shall negotiate in good faith to amend such covenant to preserve the original intent in light of such change; provided, that, until so amended: (a) such covenant shall continue to be computed in accordance with the application of GAAP prior to such change and (b) the Credit Parties shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of such covenant made before and after giving effect to such change in GAAP. |
| 1.4 | UCC Terms. Terms defined in the UCC in effect on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect. |
| 1.5 | References to Agreement and Laws. Unless otherwise expressly provided herein, |
| (a) | references to formation documents, governing documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Applicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Applicable Law. |
| 1.6 | Times of Day. Unless otherwise specified, all references herein to times of day shall be references to times of day in New York, New York. |
| 1.7 | Exchange Rates; Currency Equivalents. The Administrative Agent or the Letter of Credit Issuer, as applicable, shall determine the Spot Rates as of each applicable date required to be used for calculating Dollar Equivalent amounts of Principal Obligations and Letters of Credit denominated in Alternative Currencies. In the case of a Spot Rate required to be calculated as of a Revaluation Date, such Spot Rate shall become effective as of such Revaluation Date and shall be the Spot Rate employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by a Credit Party hereunder 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 reasonably determined by the Administrative Agent or the Letter of Credit Issuer, as applicable, based on the Spot Rate as of the last Revaluation Date. |
| 1.8 | Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Letter of Credit Application therefor (at the time specified therefor in such applicable Letter of Credit or Letter of Credit Application and as such amount may be reduced by (a) any permanent reduction of such Letter of Credit or (b) any amount which is drawn, reimbursed and no longer available under such Letter of Credit). |
| 2. | REVOLVING CREDIT LOANS AND LETTERS OF CREDIT. |
| (a) | Committed Amount. Subject to the terms and conditions herein set forth, each Lender agrees, during the Availability Period: (i) to extend to the Borrowers a revolving line of credit; and (ii) to participate in Letters of Credit issued by the Letter of Credit Issuer for the account of the Borrowers, in each case in Dollars or in an Alternative Currency. |
| (b) | Limitation on Borrowings and Re-borrowings. Except as provided in Section 2.1(c) below, no Lender shall be required to advance any Borrowing, Rollover, Conversion or cause the issuance of any Letter of Credit hereunder if: |
| (i) | after giving effect to such Borrowing, Rollover, Conversion, or issuance of such Letter of Credit: (A) the Dollar Equivalent of the Principal Obligations would exceed the Available Commitment; (B) the Dollar Equivalent of the Letter of Credit Liability would exceed the Letter of Credit Sublimit then in effect; or (C) the Dollar Equivalent of the Principal Obligations owed to any Lender would exceed the Commitment of such Lender; or |
| (ii) | the conditions precedent for such Borrowing or for the issuance of such Letter of Credit in Section 6.2 have not been satisfied. |
| (c) | Exceptions to Limitations. Conversions to Reference Rate Loans shall be permitted notwithstanding Section 2.1(b)(i) and Section 2.1(b)(ii) above, in each case, unless the Administrative Agent has otherwise accelerated the Facility Obligations or exercised other rights that terminate the Commitments under Section 10.2. |
| 2.2 | Revolving Credit Commitment. Subject to the terms and conditions herein set forth, each Lender severally agrees, on any Business Day during the Availability Period, to make Loans to the Borrowers at any time and from time to time in an aggregate principal amount up to such Lender’s Commitment at any such time. Subject to the limitations and conditions set forth in Section 2.1(b) and Section 6 and the other terms and conditions hereof, the Borrowers may borrow, repay without penalty or premium, and re-borrow hereunder, during the Availability Period. No Lender shall be obligated to fund any Loan if the interest rate applicable thereto under Section 2.6(a) would exceed the Maximum Rate in effect with respect to such Loan. |
| (a) | Request for Borrowing. The applicable Borrower shall give the Administrative Agent notice at the Agency Services Address of the date of each requested Borrowing hereunder, which notice may be by telephone, if confirmed in writing, facsimile, electronic mail, or other written communication (a “Request for Borrowing”), in the form of Exhibit F, and which notice shall be effective upon receipt by the Administrative Agent. Each Request for Borrowing: (i) shall be furnished to the Administrative Agent no later than (x) 11:00 a.m. (or such later time as the Administrative Agent may approve in its sole discretion) on the requested date of Borrowing in the case of a Reference Rate Loan or a LIBOR Rate Loan based on Daily LIBOR, (y) 12:00 p.m. (or such later time as the Administrative Agent may approve in its sole discretion) at least three (3) Business Days prior to the requested date of Borrowing in the case of a LIBOR Rate Loan (other than any LIBOR Rate Loan based on Daily LIBOR) in Dollars, and |
| (z) | 12:00 p.m. (or such later time as the Administrative Agent may approve in its sole discretion) at least four (4) Business Days prior to the requested date of Borrowing, in the case of a LIBOR Rate Loan (other than any LIBOR Rate Loan based on Daily LIBOR) in an Alternative Currency; and (ii) must specify: (A) the amount of such Borrowing; (B) the Interest Option if such Loan is to be funded in Dollars; (C) the Interest Period therefor, if applicable; (D) the currency of such Borrowing; and (E) the date of such Borrowing, which shall be a Business Day. Any Request for Borrowing received by the Administrative Agent after 12:00 p.m. shall (unless otherwise approved by the Administrative Agent) be deemed to have been given by the applicable Borrower on the next succeeding Business Day. Each Request for Borrowing submitted by the Borrowers shall be deemed to be a representation and warranty that the conditions specified in Sections 6.1 and 6.2 and, to the extent applicable, Section 6.3 and/or Section 6.4 have been satisfied (except to the extent waived) on and as of the date of the applicable Borrowing. No Request for Borrowing shall be valid hereunder for any purpose unless it shall have been accompanied or preceded by the information and other documents required to be delivered in accordance with this Section 2.3. Notwithstanding anything to the contrary contained herein, any notice requirement in this clause (a) may be waived by the Administrative Agent and the Lenders in their sole discretion in connection with the initial Request for Borrowing. |
| (b) | Further Information. Each Request for Borrowing shall be accompanied or preceded by: (i) a duly executed Borrowing Base Certificate dated the date of such Request for Borrowing; and (ii) such documents as are required to satisfy any applicable conditions precedent as provided in Section 6.2. |
| (c) | Request for Borrowing Irrevocable. Each Request for Borrowing completed and signed by any Borrower in accordance with Section 2.3(a) shall be irrevocable and binding on such Borrower, and such Borrower shall indemnify each Lender against any cost, loss (other than lost profits) or expense incurred by such Lender, either directly or indirectly, as a result of any failure by such Borrower to complete such requested Borrowing, including any cost, loss (other than lost profits) or expense incurred by the Administrative Agent or any Lender, either directly or indirectly by reason of the liquidation or reemployment of funds acquired by such Lender in order to fund such requested Borrowing except to the extent such cost, loss or expense is due to the gross negligence or willful misconduct of such Person. A certificate of such Lender setting forth the amount of any such cost, loss or expense, and the basis for the determination thereof and the calculation thereof, shall be delivered to such Borrower and shall, in the absence of a manifest error, be conclusive and binding. |
| (d) | Lender Funding Shall be Proportional. Each Lender shall make each requested Loan in accordance with its Pro Rata Share thereof. |
| (e) | Rollovers. No later than 12:00 p.m. (or such later time as the Administrative Agent may approve in its sole discretion) (x) at least three (3) Business Days prior to the termination of each Interest Period related to a LIBOR Rate Loan in Dollars or (y) at least four (4) Business Days prior to the termination of each Interest Period related to a LIBOR Rate Loan in an Alternative Currency, the applicable Borrower shall give the Administrative Agent written notice at the Agency Services Address (which notice may be via fax or electronic mail) in the form of Exhibit G (a “Rollover Notice”) whether it desires to renew such LIBOR Rate Loan. The Rollover Notice shall also specify (i) the amount of the LIBOR Rate Loan and (ii) the length of the Interest Period, in each case selected by the applicable Borrower with respect to such Rollover. Each Rollover Notice shall be irrevocable and effective upon notification thereof to the Administrative Agent. If the Borrowers fail to timely give the Administrative Agent the Rollover Notice with respect to any LIBOR Rate Loan, the Borrowers shall be deemed to have elected one (1)-month LIBOR as the Interest Option with respect to such Loan. Notwithstanding anything herein to the contrary, a LIBOR Rate Loan based on Daily LIBOR shall automatically rollover until it is prepaid or converted each day without any notice or election. |
| (f) | Conversions. The Borrowers shall have the right: (i) on any Business Day (a “LIBOR Conversion Date”), with respect to any Reference Rate Loan, to convert such Reference Rate Loan to a LIBOR Rate Loan in Dollars, or with respect to any LIBOR Rate Loan based on Daily LIBOR, to convert such LIBOR Rate Loan based on Daily LIBOR to a LIBOR Rate Loan that is not based on Daily LIBOR; and (ii) with respect to any LIBOR Rate Loan in Dollars, on any Business Day (a “Reference Rate/Daily LIBOR Conversion Date”) to convert such LIBOR Rate Loan to a Reference Rate Loan or a LIBOR Rate Loan based on Daily LIBOR, provided that the Borrowers shall, on such LIBOR Conversion |
Date or Reference Rate/Daily LIBOR Conversion Date, as applicable, make the payments required by Section 4.6, if any, in either case, by giving the Administrative Agent written notice at the Agency Services Address in the form of Exhibit G (a “Conversion Notice”) of such selection no later than 12:00 p.m. at least either (x) three (3) Business Days prior to such LIBOR Conversion Date or (y) one (1) Business Day prior to such Reference Rate/Daily LIBOR Conversion Date, as applicable. Each Conversion Notice shall be irrevocable and effective upon notification thereof to the Administrative Agent. A request of the Borrowers for a Conversion of a Reference Rate Loan to a LIBOR Rate Loan is subject to the condition that no Event of Default or Potential Default exists at the time of such request or after giving effect to such Conversion. A request of the Borrowers for a Conversion of a LIBOR Rate Loan based on Daily LIBOR to a LIBOR Rate Loan that is not based on Daily LIBOR is subject to the condition that no Event of Default or Potential Default exists at the time of such request or after giving effect to such Conversion
| (g) | Tranches. Notwithstanding anything to the contrary contained herein, no more than ten (10) LIBOR Rate Loans may be outstanding hereunder at any one time during the Availability Period. |
| (h) | Administrative Agent Notification of the Lenders. The Administrative Agent shall promptly notify each Lender of the receipt of a Request for Borrowing, a Conversion Notice or a Rollover Notice, the amount of the Borrowing and the amount and currency of such Lender’s Pro Rata Share of the applicable Loans, the date the Borrowing is to be made, the Interest Option selected, the Interest Period selected, if applicable, and the applicable rate of interest. |
| 2.4 | Minimum Loan Amounts. Each LIBOR Rate Loan shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000 and each Reference Rate Loan shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $500,000 for each Lender; provided that a Reference Rate Loan may be in an aggregate amount that is equal to the entire unused balance of the Available Commitment or that is required to finance the reimbursement of a Letter of Credit under Section 2.13(c). Any Loans in an Alternative Currency shall satisfy these minimum thresholds on a Dollar Equivalent basis. |
| (a) | Funding of Borrowings. Subject to the fulfillment of all applicable conditions set forth herein, each Lender shall make the proceeds of its Pro Rata Share of each Borrowing available to the Administrative Agent no later than 12:00 p.m. on the date specified in the Request for Borrowing as the borrowing date, in Same Day Funds, and, upon fulfillment of all applicable conditions set forth herein, the Administrative Agent shall deposit such proceeds in Same Day Funds in the applicable Borrower’s account maintained with the Administrative Agent not later than 2:00 p.m. on the borrowing date or, if requested by the Borrowers in the Request for Borrowing, shall wire-transfer such funds as requested on or before such time. If a Lender fails to make its Pro Rata Share of any requested Borrowing available to the Administrative Agent on the applicable borrowing date, then the Administrative Agent may recover the applicable amount on demand: (i) from such Lender, together with interest at the Federal Funds Rate for the |
period commencing on the date the amount was made available to the Borrowers by the Administrative Agent and ending on (but excluding) the date the Administrative Agent recovers the amount from such Lender; or (ii) if such Lender fails to pay its amount upon the Administrative Agent’s demand, then from the Borrowers by the Required Payment Time, together with interest at a rate per annum equal to the rate applicable to the requested Borrowing for the period commencing on the borrowing date and ending on (but excluding) the date the Administrative Agent recovers the amount from the Borrowers.
| (b) | Obligations of Lender Several. The liabilities and obligations of each Lender hereunder shall be several and not joint, and neither the Administrative Agent nor any Lender shall be responsible for the performance by any other Lender of its obligations hereunder. The failure of any Lender to advance the proceeds of its Pro Rata Share of any Borrowing required to be advanced hereunder shall not relieve any other Lender of its obligation to advance the proceeds of its Pro Rata Share of any Borrowing required to be advanced hereunder. Each Lender hereunder shall be liable to the Borrowers only for the amount of its respective Commitment. |
| (a) | Interest Rate. Each Loan funded by the Lenders shall accrue interest at a rate per annum equal to: (i) with respect to LIBOR Rate Loans, Adjusted LIBOR for the applicable Interest Period; and (ii) with respect to Reference Rate Loans, the Reference Rate in effect from day to day. At any time, each Loan shall have only one Interest Period and one Interest Option. Notwithstanding anything to the contrary contained herein, in no event shall the interest rate hereunder exceed the Maximum Rate. |
| (b) | Change in Rate; Past Due Amounts; Calculations of Interest. Each change in the rate of interest for any Borrowing consisting of Reference Rate Loans shall become effective, without prior notice to the Credit Parties, automatically as of the opening of business of the Administrative Agent on the date of said change. Interest on the unpaid principal balance of (i) each LIBOR Rate Loan (other than LIBOR Rate Loans denominated in Sterling) and Reference Rate Loan bearing interest based on LIBOR shall be calculated on the basis of the actual days elapsed in a year consisting of 360 days and |
(ii) each Reference Rate Loan (other than when the Reference Rate is calculated based on LIBOR) and LIBOR Rate Loan denominated in Sterling shall be calculated on the basis of the actual days elapsed in a year consisting of 365 or 366 days, as the case may be.
| (c) | Default Rate. If an Event of Default has occurred and is continuing, then, upon written notice to the Borrowers from the Administrative Agent, (in lieu of the interest rate provided in Section 2.6(a) above) all Facility Obligations shall bear interest, after as well as before judgment, at the Default Rate. |
| 2.7 | Determination of Rate. The Administrative Agent shall determine each interest rate applicable to the LIBOR Rate Loans and Reference Rate Loans hereunder. The Administrative Agent shall, upon request, give notice to the Borrowers and to the Lenders of each rate of interest so determined, and its determination thereof shall be conclusive and binding in the absence of manifest error. |
| 2.8 | Qualified Borrowers. In consideration of the Lenders’ agreement to advance funds to a Qualified Borrower that has joined the Credit Facility in accordance with Section 6.3, to cause Letters of Credit to be issued for the account of a Qualified Borrower pursuant to Section 2.13, and to accept the Qualified Borrower Guaranties in support thereof, the Borrowers hereby authorize, empower, and direct the Administrative Agent, for the benefit of the Secured Parties, within the limits of the Available Commitment, to disburse directly to the Lenders, with notice to the Borrowers, in Same Day Funds, an amount equal to the amount due and owing under any Qualified Borrower Promissory Note or any Qualified Borrower Guaranty, together with all interest, costs and expenses and fees due to the Lenders pursuant thereto, as a Borrowing hereunder, in the event the Administrative Agent shall have not received payment of such Facility Obligations when due. The Administrative Agent will notify the Borrowers of any disbursement made to the Lenders pursuant to the terms hereof; provided that the failure to give such notice shall not affect the validity of the disbursement, and the Administrative Agent shall provide the Lenders with notice thereof. Any such disbursement made by the Administrative Agent to the Lenders shall be deemed to be a Reference Rate Loan pursuant to Section 2.3 in the amount so paid, and the Borrowers shall be deemed to have given to the Administrative Agent in accordance with the terms and conditions of Section 2.3, a Request for Borrowing with respect thereto; and such disbursements shall be made without regard to the minimum and multiple amounts specified in Section 2.4. The Administrative Agent may conclusively rely on the Lenders as to the amount of any such Facility Obligations due to the Lenders, absent manifest error. |
| 2.9 | Use of Proceeds, Letters of Credit and Qualified Borrower Guaranties. The proceeds of the Loans and the Letters of Credit shall be used solely for purposes (a) expressly permitted under the Constituent Documents of each Credit Party and (b) for which a Capital Call may be made to fund the repayment thereof. Neither the Lenders nor the Administrative Agent shall have any liability, obligation, or responsibility whatsoever with respect to the Borrowers’ use of the proceeds of the Loans, the Letters of Credit or execution and delivery of the Qualified Borrower Guaranties, and neither the Lenders nor the Administrative Agent shall be obligated to determine whether or not the Borrowers’ use of the proceeds of the Loans or the Letters of Credit are for purposes permitted under the Constituent Documents of any Credit Party. Nothing, including, without limitation, any Borrowing, any Rollover, any issuance of any Letter of Credit, or acceptance of any Qualified Borrower Guaranty or other document or instrument, shall be construed as a representation or warranty, express or implied, to any party by the Lenders or the Administrative Agent as to whether any investment by the Borrowers is permitted by the terms of the Constituent Documents of any Credit Party. Each Borrower agrees to respond promptly to any reasonable requests for information related to its use of Loan and Letter of Credit proceeds to the extent required by any Lender in connection with such Lender’s determination of its compliance with Section 23A of the Federal Reserve Act (12 U.S.C. § 371c) and the Federal Reserve Board’s Regulation W (12 C.F.R. Part 223). No Borrower shall to its actual knowledge use the proceeds of any Borrowing hereunder to purchase any asset or securities from any Lender’s “affiliate” as such term is defined in 12 C.F.R. Part 223, without the prior written consent of the applicable Lender, in its sole discretion. In connection with each Request for Borrowing hereunder, the requesting Borrower shall be deemed to have represented and warranted to the Administrative Agent on the date of such Borrowing that, to its actual knowledge, as of the date of the requested Borrowing, the proceeds of such Borrowing will not be used by such Borrower to, directly or indirectly, either (x) purchase any asset or securities from any Lender’s “affiliate” as such term is defined in 12 C.F.R. Part 223 or (y) invest in any fund sponsored by a Lender or such “affiliate” |
thereof, without the prior written consent of the applicable Lender, in its sole discretion. Notwithstanding the foregoing: (i) no Lender’s consent shall be required pursuant to this Section
2.9 in order for a Borrower to use the proceeds of a Borrowing hereunder to purchase assets or securities in accordance with 12 C.F.R. section 223.42(c), (e), (f), (g) and (m) (any such purchase, an “Exempt Purchase”); and (ii) a Borrower shall not be deemed to have made the representation and warranty set forth in clause (x) above in respect of any Exempt Purchase.
| 2.10 | Fees. The Borrowers shall pay to the Administrative Agent fees in consideration of the arrangement and administration of the Commitments, which fees shall be payable in amounts and on the dates agreed to between the Initial Borrower and the Administrative Agent in the Fee Letter. The Borrowers will pay to the Administrative Agent such other fees as are payable in the amount and on the date agreed to between the Initial Borrower and the Administrative Agent in the Fee Letter. |
| 2.11 | Unused Commitment Fee. In addition to the payments provided for in Section 3, the Borrowers shall pay or cause to be paid to the Administrative Agent, for the account of each Lender, an unused commitment fee at the rate of twenty basis points (0.20%) per annum on the Commitment of the Lenders which was unused (through the extension of Loans or the issuance of Letters of Credit) calculated on the basis of actual days elapsed in a year consisting of 360 days and payable in arrears on the first Business Day of each calendar quarter for the preceding calendar quarter. For purposes of this Section 2.11, the fee shall be calculated on a daily basis; provided that the Commitment of a Defaulting Lender shall be excluded in the calculation of the commitment fee and no portion of the commitment fee shall be due to a Lender for any period of time in which such Lender was a Defaulting Lender. The Credit Parties and the Lenders acknowledge and agree that the unused commitment fees payable hereunder are bona fide unused commitment fees and are intended as reasonable compensation to the Lenders for committing to make funds available to the Borrowers as described herein and for no other purposes. |
| (a) | Letter of Credit Commitment. Subject to the terms and conditions hereof, on any Business Day during the Availability Period, the Letter of Credit Issuer shall issue such Letters of Credit in Dollars or in an Alternative Currency and in such aggregate face amounts as the Borrowers may request; provided that: (i) on the date of issuance, the Dollar Equivalent of the Letter of Credit Liability (after giving effect to the issuance of any such Letter of Credit) will not exceed the lesser of: (A) the remainder of: (1) the Available Commitment as of such date minus |
(2) the Dollar Equivalent of the Principal Obligations as of such date and (B) the Letter of Credit Sublimit; (ii) each Letter of Credit shall be in a minimum amount of $250,000 or the Dollar Equivalent thereof; (iii) the expiry date of the Letter of Credit shall not be later than (A) twelve
(12) months after the date of issuance (subject to automatic renewal for additional one year periods pursuant to the terms of the Letter of Credit Application or other documentation acceptable to the Letter of Credit Issuer) without the Letter of Credit Issuer’s consent, in its sole discretion, or (B) thirty (30) days prior to the Stated Maturity Date, or, if the Borrowers comply with Section 2.13(h), within one (1) year after the Stated Maturity Date; (iv) each Letter of Credit shall be subject to the Uniform Customs and/or ISP98, as set forth in the Letter of Credit Application or as determined
by the Letter of Credit Issuer and, to the extent not inconsistent therewith, the laws of the State of New York, and (v) the Letter of Credit Issuer shall be under no obligation to issue any Letter of Credit if, after the Closing Date (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any Applicable Law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of Credit Issuer deems material to it, (B) the Borrowers have not provided the information necessary for the Letter of Credit Issuer to complete the form of Letter of Credit, or (C) the issuance of such Letter of Credit would violate Applicable Law or one or more policies of the Letter of Credit Issuer. For the avoidance of doubt, if the Borrowers request that a Letter of Credit be issued for the account of any Subsidiary, the Borrowers shall be liable for all Obligations under such Letter of Credit as if it had been issued for the account of the Borrowers.
| (b) | Request. Each request for a Letter of Credit (a “Request for Letter of Credit”) shall be submitted to the Administrative Agent substantially in the form of Exhibit K (with blanks appropriately completed in conformity herewith), together with a Letter of Credit Application and a Borrowing Base Certificate (each of which shall be in final form upon delivery thereof to the Administrative Agent), for the Letter of Credit Issuer, on or before 11:00 a.m. at least four (4) Business Days prior to the requested date of issuance of such Letter of Credit (or six |
| (6) | Business Days with respect to Letters of Credit to be issued by any branch of the Letter of Credit Issuer located outside of the United States). The Administrative Agent shall notify each Lender of such Request for Letter of Credit and the terms of the requested Letter of Credit. Upon each such application, the Borrowers shall be deemed to have automatically made to the Administrative Agent, each Lender, and the Letter of Credit Issuer the following representations and warranties: |
| (i) | The Letter of Credit Liability (after giving effect to the issuance of the requested Letter of Credit) will not exceed the lesser of: (A) the remainder of: |
(1) the Available Commitment as of such date; minus (2) the Dollar Equivalent of the Principal Obligations as of such date; and (B) the Letter of Credit Sublimit on such date; and
| (ii) | All conditions precedent in Section 6.2 for the issuance of such Letter of Credit will be satisfied as of the date of such issuance. |
| (c) | Participation by the Lenders. Each Lender shall and does hereby participate ratably with the Letter of Credit Issuer in each Letter of Credit issued and outstanding hereunder to the extent of its Pro Rata Share of the Letter of Credit Liability with respect to each such Letter of Credit, and shall share in all rights and obligations resulting therefrom, including, without limitation: (i) the right to receive from the Administrative Agent its Pro Rata Share of any reimbursement of the amount of each draft drawn under each Letter of Credit, including any |
interest payable with respect thereto; (ii) the right to receive from the Administrative Agent its Pro Rata Share of the Letter of Credit fee pursuant to Section 2.13; (iii) the right to receive from the Administrative Agent its additional costs pursuant to Section 4.1; and (iv) the obligation to pay to the Administrative Agent or the Letter of Credit Issuer, as the case may be, in immediately available funds, its Pro Rata Share of any unreimbursed drawing under a Letter of Credit.
| (d) | Payment of Letter of Credit. In the event of any drawing under any Letter of Credit, the Borrowers agree to reimburse (either with the proceeds of a Loan as provided for in this Section 2.13 or with funds from other sources), in same day funds, the Letter of Credit Issuer on each date on which the Letter of Credit Issuer notifies the Borrowers of the date and amount of a draft paid under any Letter of Credit (or the following Business Day if such notice is received after 12:00 p.m.) for the amount of such draft so paid and any amounts representing interest, costs, expenses or fees incurred by the Letter of Credit Issuer in connection with such payment. Unless the Borrowers shall immediately notify the Letter of Credit Issuer that the Borrowers intend to reimburse the Letter of Credit Issuer for such drawing from other sources or funds, the Borrowers shall be deemed to have timely given a Request for Borrowing to the Administrative Agent (without regard to any otherwise applicable notice periods), and the Borrowers hereby authorize, empower, and direct the Administrative Agent, for the benefit of the Secured Parties and the Letter of Credit Issuer, to disburse directly, as a Borrowing hereunder, to the Letter of Credit Issuer, with notice to the Borrowers, in immediately available funds an amount equal to the stated amount of each draft drawn under each Letter of Credit plus all interest, costs and expenses, and fees due to the Letter of Credit Issuer pursuant to this Credit Agreement. Subject to receipt of notice from the Administrative Agent, each Lender shall pay to the Administrative Agent such Lender’s Pro Rata Share of the amount disbursed by the Letter of Credit Issuer on the Business Day on which the Letter of Credit Issuer honors any such draft or incurs or is owed any such interest, costs, expenses or fees. The Administrative Agent shall notify the Borrowers of any such disbursements made by the Lenders pursuant to the terms hereof; provided that the failure to give such notice will not affect the validity of the disbursement, and the Administrative Agent shall provide the Lenders with notice thereof. Any such disbursement made by the Lenders to the Letter of Credit Issuer on account of a Letter of Credit shall be deemed a Reference Rate Loan if in Dollars and a LIBOR Rate Loan with a one-month Interest Period if in an Alternative Currency; and such disbursements shall be made without regard to the minimum and multiple amounts specified in Section 2.4. The Administrative Agent and the Lenders may conclusively rely on the Letter of Credit Issuer as to the amount due to the Letter of Credit Issuer by reason of any draft of a Letter of Credit or due to the Letter of Credit Issuer under any Letter of Credit Application. The obligations of a Lender to make payments to the Administrative Agent for the account of the Letter of Credit Issuer, and, as applicable, the obligations of the Borrowers with respect to Borrowings, each under this Section 2.13(d) shall be irrevocable, shall not be subject to any qualification or exception whatsoever, and shall, irrespective of the satisfaction of the conditions to the making of any Loans described in Sections 2.1(b), 6.1, 6.2, 6.3 and/or 6.4, as applicable, be honored in accordance with this Section 2.13(d) under all circumstances, including, without limitation, any of the following circumstances: |
(i) any lack of validity or enforceability of such Letter of Credit, this Credit Agreement or any of the other Loan Documents; (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrowers in respect of any Letter of Credit or any other amendment or waiver of or any consent to departure from all or any of the terms of the Letter of Credit; (iii) the existence of any claim, counterclaim, setoff, defense or other right which the Borrowers may have at any time against a beneficiary named in a Letter of Credit or any
transferee of a beneficiary named in a Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Letter of Credit Issuer, any Lender, or any other Person, whether in connection with this Credit Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between the account party and beneficiary named in any Letter of Credit); (iv) any draft, demand, certificate or any other document presented under a Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect or any loss or delay in the transmission or otherwise of any document required in order to make a draw under a Letter of Credit; (v) any payment by the Letter of Credit Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; (vi) any payment made by the Letter of Credit Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; (vii) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; (viii) the occurrence of any Event of Default or Potential Default; or (ix) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Credit Party. The Letter of Credit Issuer shall provide prompt written notice to the Administrative Agent and the applicable Borrower of each request for a draw under a Letter of Credit and each draw under a Letter of Credit.
| (e) | Borrower Inspection. The Borrowers shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to them and, in the event of any claim of noncompliance with the Borrowers’ instructions or other irregularity, the Borrowers will immediately notify the Letter of Credit Issuer of the same in writing. The Borrowers shall be conclusively deemed to have waived any such claim against the Letter of Credit Issuer and its correspondents unless such notice is given as aforesaid. |
| (f) | Role of Letter of Credit Issuer. Each Lender and the Credit Parties agree that, in paying any drawing under a Letter of Credit, the Letter of Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Letter of Credit Issuer, the Administrative Agent nor any of the respective correspondents, participants or assignees of the Letter of Credit Issuer shall be liable to any Lender for: (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit. The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrowers from pursuing such rights and remedies as they may have against the beneficiary or transferee at law or under any other agreement. None of the Letter of Credit Issuer, the Administrative Agent, nor any of the respective correspondents, participants or assignees of the Letter of Credit Issuer, shall be liable or responsible for any of the matters described in clauses |
(i) through (ix) of Section 2.13(d). In furtherance and not in limitation of the foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
| (g) | Acceleration of Undrawn Amounts. Should the Administrative Agent demand payment of the Facility Obligations hereunder prior to the Maturity Date pursuant to Section 10.2, the Administrative Agent, by written notice to the Borrowers, may take one or both of the following actions: (i) declare the obligation of the Letter of Credit Issuer to issue Letters of Credit hereunder terminated, whereupon such obligations shall forthwith terminate without any other notice of any kind; or (ii) declare the Letter of Credit Liability to be forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby waived, and demand that the Borrowers Cash Collateralize, as security for the Obligations, an amount equal to the Minimum Collateral Amount at the time such notice is given. Unless otherwise required by Applicable Law, upon the full and final payment of the Obligations and all Letters of Credit have expired or been fully drawn upon or Cash Collateralized in an amount equal to or greater than the Minimum Collateral Amount (other than Obligations in respect of a Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.16(h)), the Administrative Agent shall return to the Borrowers any amounts remaining in said Cash Collateral Account. |
| (h) | Cash Collateral. If (i) as of the Maturity Date, any Letters of Credit may for any reason remain outstanding and partially or wholly undrawn, or (ii) any other circumstances under this Credit Agreement or the other Loan Documents occurs requiring the Borrowers to Cash Collateralize any Letters of Credit, then, in each case, the Borrowers shall promptly Cash Collateralize in an amount equal to the Minimum Collateral Amount or, in the case of Section 2.13(h)(ii) above, such amount expressly required by the terms of this Credit Agreement or other Loan Document, to the Administrative Agent for the benefit of the Secured Parties, to be held by the Administrative Agent as Cash Collateral subject to the terms of this Section 2.13(h) and any security agreement, control agreement and other documentation requested by the Administrative Agent to be executed in connection with opening a Cash Collateral Account for the purpose of holding such Cash Collateral. All Cash Collateral to be provided by the Borrowers pursuant to this Section 2.13(h) shall be in the currency or currencies of the underlying Letters of Credit. Cash Collateral held in a Cash Collateral Account shall be applied by the Administrative Agent to the reimbursement of the Letter of Credit Issuer for any payment made by it of drafts drawn under the outstanding Letters of Credit, and the unused portion thereof, after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other Obligations. After all such Letters of Credit shall have expired or been fully drawn upon or been Cash Collateralized in an amount equal to or greater than the Minimum Collateral Amount, all Letter of Credit Liability shall have been satisfied and all other Obligations (other than Obligations in respect of a Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.16(h)) shall have been paid in full, the balance, if any, of Cash Collateral held in a Cash Collateral Account pursuant to this Section 2.13(h) shall be returned to the Borrowers. The Borrowers hereby grant to the Administrative Agent, for the benefit of the Secured Parties, and agree to maintain, a |
first priority security interest in all such Cash Collateral and in each Cash Collateral Account as security in respect of the Letter of Credit Liability.
| (i) | Lenders’ Continuing Obligations. In the event any Letter of Credit Liability is Cash Collateralized in accordance with Section 2.13(h) or otherwise pursuant to this Credit Agreement (including but not limited to the Cash Collateralizing of a Letter of Credit outstanding beyond the Maturity Date), each Lender’s participation in such Letter of Credit pursuant to this Section 2.13 shall continue in all respects, the Lenders will continue to be entitled to receive their Pro Rata Share of the Letter of Credit fee payable in accordance with Section 2.14, and the Lenders shall continue to be obligated to fund their Pro Rata Share of any drawing under such Letter of Credit in the event the Cash Collateral is for any reason unavailable or insufficient to fully fund such drawing (including, but not limited to, as a result of any preference claim or other clawback under any proceeding pursuant to any Debtor Relief Laws). |
| (j) | Defaulting Lenders. Notwithstanding anything to the contrary contained in this Credit Agreement, this Section 2.13 shall be subject to the terms and conditions of Section 4.10 and Section 12.12. |
| 2.14 | Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent: (a) for the benefit of the Lenders, in consideration for the issuance of Letters of Credit hereunder, a non-refundable fee equal to the Applicable Margin (plus two percent (2%) if an Event of Default has occurred and is continuing) on the daily face amount of each Letter of Credit, less the amount of any draws on such Letter of Credit, payable in quarterly installments in arrears on the first Business Day of each calendar quarter for the preceding calendar quarter, commencing on the issuance date and continuing for so long as such Letter of Credit remains outstanding (including, for the avoidance of doubt, any Letter of Credit that is outstanding but has been Cash Collateralized) calculated on the basis of actual days elapsed in a year consisting of 360 days; and |
| (b) | for the benefit of the Letter of Credit Issuer: (i) so long as there is at least one Lender other than the Letter of Credit Issuer, a non-refundable fronting fee equal to 12.5 basis points (0.125%) of the maximum amount of each Letter of Credit, payable in quarterly installments in arrears on the first Business Day of each calendar quarter for the preceding calendar quarter; (ii) $1,000 per requested issuance or amendment of a Letter of Credit, such amount to be increased at the discretion of the Letter of Credit Issuer to offset any out-of-pocket expenses incurred by the Letter of Credit Issuer in connection with any non-standard Letters of Credit or Letters of Credit issued by a branch office outside the United States; and (iii) all other reasonable and customary out of pocket expenses actually incurred by the Letter of Credit Issuer related to the issuance, amendment or transfer of Letters of Credit upon demand by the Letter of Credit Issuer. |
| 2.15 | Increase in the Maximum Commitment. |
| (a) | Request for Increase. Provided there exists no Event of Default or Potential Default, and subject to compliance with the terms of this Section 2.15, with the consent of the Administrative Agent, such consent to be given in its sole and absolute discretion, the Borrowers may increase the Maximum Commitment to an amount not exceeding $150,000,000. Such increase may be done in one or more requested increases, in $25,000,000 increments, or such lesser amount to be determined by the Administrative Agent (each such increase, shall be referred to herein as a “Facility Increase”). |
| (b) | Effective Date. The Administrative Agent shall determine the effective date of any Facility Increase (the “Increase Effective Date”) which (unless otherwise agreed in writing by the Administrative Agent) shall be no less than ten (10) Business Days after receipt of a Facility Increase Request and shall notify the Borrowers and the Lenders of the Increase Effective Date. |
| (c) | Conditions to Effectiveness of Increase. The following are conditions precedent to such increase: |
| (i) | the Borrowers shall deliver to the Administrative Agent a Facility Increase Request and resolutions adopted by the Credit Parties approving or consenting to such increase, certified by a Responsible Officer of the Credit Parties that such resolutions are true and correct copies thereof and are in full force and effect (it being understood that the resolutions delivered as of the Closing Date may be delivered in connection with a Facility Increase so long as such resolutions remain in full force and effect); |
| (ii) | on or prior to the proposed date of such Facility Increase, the Borrowers shall have paid to the Administrative Agent the Facility Increase Fee; |
| (iii) | if applicable, the Borrowers shall execute replacement Notes payable to the Administrative Agent reflecting the Facility Increase; |
| (iv) | as of the effective date of such increase and immediately after giving effect thereto, the representations and warranties set forth herein and in the other Loan Documents are true and correct in all material respects with the same force and effect as if made on and as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date); provided that if a representation or warranty is qualified as to materiality, with respect to such representation or warranty, the foregoing materiality qualifier shall be disregarded for the purposes of this condition; |
| (v) | no Potential Default or Event of Default shall have occurred and be continuing on the date on which the Facility Increase Request is delivered or immediately after giving effect to the Facility Increase; |
| (vi) | on the Increase Effective Date, (x) an existing Lender or Lenders shall increase its Commitment to support any Facility Increase, in its sole discretion, and/or (y) an additional Lender or Lenders shall have joined the Credit Facility in accordance with Section 12.11(g) and, after giving effect thereto, the aggregate Commitments of such increasing and additional Lenders shall be at least equal to the amount of such Facility Increase; |
| (vii) | the Borrowers shall have delivered to each Lender a new or updated Beneficial Ownership Certification, as applicable, in relation to each Borrower that |
qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, if so requested by such Lender prior to the Increase Effective Date; and
| (viii) | in the case of a new Lender joining the Credit Facility, the Borrowers shall have delivered to the new Lender favorable opinions of counsel (or reliance letters) to the Credit Parties valid in all applicable jurisdictions, substantially in a form reasonably acceptable to the new Lender and its counsel and covering such matters relating to the transactions contemplated hereby as reasonably requested by the Administrative Agent evidencing the amounts owed to the Lenders. |
For the avoidance of doubt, any Facility Increase will be on the same terms as contained herein with respect to the Credit Facility. No Lender will be required to commit, nor shall any Lender have any preemptive right, to provide any portion of any Facility Increase.
| (d) | Reallocation Following Facility Increase. On any Increase Effective Date with respect to any Facility Increase (whether pursuant to a new Lender joining the Credit Facility or an existing Lender increasing its Commitment), the Administrative Agent will reallocate the outstanding Loans and participations in Letters of Credit hereunder (including any Loans made by any new or increasing Lender pursuant to this Section 2.15) such that, after giving effect thereto, the ratio of each Lender’s (including each new or increasing Lender’s) share of outstanding Loans and participations in Letters of Credit to its share of Commitments is the same as that of each other Lender. For the avoidance of doubt, such reallocation may require the reallocation of Loans from an existing Lender to a new or increasing Lender. In connection with any such reallocation of the outstanding Loans, the (i) Administrative Agent will give advance notice sufficient to comply with the applicable timing period in Section 2.3 to each Lender which is required to fund any amount or receive any partial repayment in connection therewith and (ii) applicable Lender or Lenders will fund such amounts up to their respective shares of the Loans being reallocated and the Administrative Agent shall remit to any applicable Lenders its applicable portion of such funded amount if necessary to give effect to the reallocation of such Loans. In connection with such repayment made with respect to such reallocation (to the extent such repayment is required), the Borrowers shall pay (i) all interest due on the amount repaid to the date of repayment on the immediately following Interest Payment Date and (ii) any amounts due pursuant to Section 4.6 as a result of such reallocation occurring on any date other than an Interest Payment Date. |
| (a) | Lender Hedge Agreements. From time to time, certain Fund Borrowers or entities guaranteed by certain Fund Borrowers and Specified Hedge Banks may in their sole discretion enter into Lender Hedge Agreements. The applicable Fund Borrower and such Specified Hedge Bank may secure such Fund Borrower’s obligations under such Lender Hedge Agreement with the Collateral pursuant to the Loan Documents, subject to compliance with this Section 2.16. Such Lender Hedge Agreement may receive a Trade Allocation and be subject to repayment in accordance with clause (c) of Section 3.4 if in compliance with this Section 2.16. |
| (b) | Allocation Memos. Upon the agreement of a Fund Borrower and a Requesting Hedge Bank to enter into a Lender Hedge Agreement or to increase the amount of collateral provided in connection with a Lender Hedge Agreement, the applicable Fund Borrower may deliver an Allocation Memo, executed by such Fund Borrower and such Requesting Hedge Bank, requesting that such Lender Hedge Agreement be allocated a Trade Allocation, to the Administrative Agent no later than 1:00 p.m. at least one (1) Business Day prior to the requested effective date of such Trade Allocation (or such shorter period as requested by the applicable Fund Borrower and agreed to by the Administrative Agent in its sole discretion). So long as on the date of delivery of such Allocation Memo and the effective date of such Trade Allocation (after giving pro forma effect thereto): (A) no Event of Default or Potential Default shall have occurred and be continuing; (B) the Dollar Equivalent of the Principal Obligations would not exceed the Available Commitment; (C) the Aggregate Outstanding Trade Allocation shall not exceed the Maximum Aggregate Trade Allocation; and (D) the Aggregate Outstanding Trade Allocations of the Requesting Hedge Bank shall not exceed such Requesting Hedge Bank’s Maximum Trade Allocation, the Administrative Agent shall allocate the requested amount of the Borrowing Base to the Hedge Termination Value under such Lender Hedge Agreement as set forth in such Allocation Memo, which allocations shall be effective upon the Administrative Agent’s delivery of the Allocation Memo, signed by the Administrative Agent to the applicable Borrower and the Requesting Hedge Bank. Upon the effectiveness of such Trade Allocation, the obligations of the applicable Fund Borrower or entity guaranteed by the applicable Fund Borrower under the related Lender Hedge Agreement shall become Obligations under the Loan Documents and be secured by the Collateral pursuant to clause (c) of Section 3.4 in all respects. Promptly upon giving effect to a Trade Allocation, the Administrative Agent will give written notice thereof to the Fund Borrowers and Lenders. |
| (c) | Lender Hedge Agreements Not Allocated a Trade Allocation. Notwithstanding anything in this Section 2.16 to the contrary, a Borrower or an entity guaranteed by a Fund Borrower and a Specified Hedge Bank may in their sole discretion enter into a Lender Hedge Agreement that is not allocated a Trade Allocation in accordance with this Section 2.16; provided that the obligations under the related Lender Hedge Agreement shall be secured by the Collateral but be junior in right and in payment as set forth in clause (c) of Section 3.4. Promptly after entering a Lender Hedge Agreement which is not allocated a Trade Allocation, the applicable Specified Hedge Bank will give notice of the entry thereof to the Administrative Agent. From time to time, upon the request of the Administrative Agent, each Specified Hedge Bank will notify the Administrative Agent of the Hedge Termination Value of each Lender Hedge Agreement |
| (d) | Increases in Trade Allocations. If, on any date, the Hedge Termination Value under a Lender Hedge Agreement has moved against the applicable Fund Borrower or entity guaranteed by the applicable Borrower and additional collateral is required pursuant to the terms of the applicable Lender Hedge Agreement, then the applicable Requesting Hedge Bank and applicable Fund Borrower may deliver an Allocation Memo to the Administrative Agent requesting that such Lender Hedge Agreement be allocated an additional Trade Allocation by no later than 1:00 p.m. at least one (1) Business Day prior to the requested effective date of such Trade Allocation (or such shorter period as requested by the applicable Requesting Hedge Bank and applicable Fund Borrower and agreed to by the Administrative Agent in its sole discretion). So long as on the date of delivery of such Allocation Memo and the effective date of such additional Trade Allocation (after giving pro forma effect thereto): (A) no Event of Default or Potential |
Default shall have occurred and be continuing; (B) the Dollar Equivalent of the Principal Obligations would not exceed the Available Commitment; (C) the Aggregate Outstanding Trade Allocation shall not exceed the Maximum Aggregate Trade Allocation; and (D) the Aggregate Outstanding Trade Allocations of the Requesting Hedge Bank shall not exceed such Requesting Hedge Bank’s Maximum Trade Allocation, the Administrative Agent shall allocate the requested additional amount of the Borrowing Base to the Hedge Termination Value under such Lender Hedge Agreement as set forth in such Allocation Memo, which allocations shall be effective upon the Administrative Agent’s delivery of the Allocation Memo, signed by the Administrative Agent to the applicable Borrower and the Requesting Hedge Bank. Promptly upon giving effect to a Trade Allocation, the Administrative Agent will give written notice thereof to the Fund Borrowers and Lenders and the applicable Fund Borrower will deliver an updated Borrowing Base Certificate to the Administrative Agent promptly thereafter.
| (e) | Order of Allocation Memos. Allocation Memos shall be emailed to the Administrative Agent at its email address as set forth in Section 12.6. The Administrative Agent shall process Allocation Memos in the order in which they are received on a first come, first serve basis based on the time stamp on the email so received. |
| (f) | Reduction of Trade Allocations. In the event that a Lender Hedge Agreement is never formally entered into, has been terminated or the applicable Requesting Hedge Bank and the applicable Fund Borrower agree that the Trade Allocation with respect thereto can be reduced, the applicable Fund Borrower will deliver an Allocation Memo, executed by such Borrower and such Requesting Hedge Bank, requesting that the related Trade Allocation be eliminated or reduced, as applicable, to the Administrative Agent no later than 1:00 p.m. at least one (1) Business Day prior to the requested effective date of such reduction or elimination of the Trade Allocation (or such shorter period as requested by the applicable Fund Borrower and agreed to by the Administrative Agent in its sole discretion). On the next Business Day following receipt thereof, the Administrative Agent shall reduce or eliminate, as applicable, the Trade Allocation allocated to such Lender Hedge Agreement as requested in such Allocation Memo and such reduction or elimination shall become effective. Promptly upon giving effect thereto, the Administrative Agent will give written notice thereof to the Fund Borrowers and Lenders. |
| (g) | Administrative Agent to Maintain Records of the Borrowing Base and Trade Allocations. The Administrative Agent shall at all times post the most recent Borrowing Base Certificate and/or Allocation Memo delivered to it hereunder by a Fund Borrower or Requesting Hedge Bank, as applicable, on an electronic communication system reasonably selected by it to enable the Fund Borrowers and Lenders to view the then current Borrowing Base (including the outstanding Trade Allocations). The Administrative Agent shall at all times maintain records of the Trade Allocations outstanding with respect to Lender Hedge Agreements. Upon the request of the Administrative Agent, each Lender will promptly inform the Administrative Agent of the Hedge Termination Value of each Lender Hedge Agreement. |
| (h) | Cash Collateral and Other Security. |
| (i) | If any circumstance under any Lender Hedge Agreement occurs or would occur as a result of any action taken under this Credit Agreement that would require the Fund Borrowers or entity guaranteed by a Fund Borrower to cash |
collateralize such Lender Hedge Agreement or otherwise satisfy any requirements or conditions related to collateral pursuant to the terms of such Lender Hedge Agreement, then the Fund Borrowers or entity guaranteed by a Fund Borrower shall promptly cash collateralize all outstanding Obligations with respect to such Lender Hedge Agreement or otherwise satisfy all such conditions or requirements related to collateral, as applicable, under such Lender Hedge Agreement in each case, in accordance with the terms of such Lender Hedge Agreement.
| (ii) | If any Lender Hedge Agreement will remain in effect beyond the Maturity Date, to the extent that it is necessary for the Credit Parties to issue a Capital Call to meet cash collateralization requirements in connection with such Lender Hedge Agreement, the Credit Parties shall issue such Capital Call at least fifteen (15) Business Days prior to the Maturity Date. |
| 3. | PAYMENT OF OBLIGATIONS. |
| 3.1 | Revolving Credit Notes. Any Lender may request that the Loans be evidenced by a Note. In such event, each Borrower shall execute and deliver a Note or Notes in the form of Exhibit B (with blanks appropriately completed in conformity herewith), in favor of such Lender. Each Borrower agrees, from time to time, upon the request of the Administrative Agent or any Lender, to reissue a new Note, in accordance with the terms and in the form heretofore provided, to the Administrative Agent or such Lender, in renewal of and substitution for the Note previously issued by such Borrower to the Administrative Agent or such Lender, and such previously issued Note shall be returned to such Borrower marked “replaced” or “cancelled”. |
| 3.2 | Payment of Obligations. The Principal Obligations outstanding on the Maturity Date, together with all accrued but unpaid interest thereon and any other outstanding Facility Obligations, shall be due and payable on the Maturity Date. |
| (a) | Interest. Interest on each Borrowing and any portion thereof shall commence to accrue in accordance with the terms of this Credit Agreement and the other Loan Documents as of the date of the disbursement or wire transfer of such Borrowing by the Administrative Agent, consistent with the provisions of Section 2.6, notwithstanding whether the Borrowers received the benefit of such Borrowing as of such date and even if such Borrowing is held in escrow pursuant to the terms of any escrow arrangement or agreement. When a Borrowing is disbursed by wire transfer pursuant to instructions received from the Borrowers in accordance with the related Request for Borrowing, then such Borrowing shall be considered made at the time of the transmission of the wire, rather than the time of receipt thereof by the receiving bank. With regard to the repayment of the Loans, interest shall continue to accrue on any amount repaid until such time as the repayment has been received in federal funds or other Same Day Funds by the Administrative Agent in the Administrative Agent’s account described in Section 3.4, or any other account of the Administrative Agent which the Administrative Agent designates in writing to the Borrowers. |
| (b) | Interest Payment Dates. Accrued and unpaid interest on the Facility Obligations shall be due and payable in arrears (i) on each Interest Payment Date, (ii) on each other date of any reduction of the outstanding principal amount of the Loans hereunder, and (iii) upon the occurrence and during the continuance of an Event of Default, at any time upon demand by the Administrative Agent. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. |
| 3.4 | Payments on the Obligations. |
| (a) | Credit Party Payments. All payments of principal of, and interest on, the Facility Obligations under this Credit Agreement by any Credit Party to or for the account of the Lenders, or any of them, shall be made without condition or deduction or counterclaim, set-off, defense or recoupment by the Borrowers for receipt by the Administrative Agent before 1:00 p.m. in the case of payments made in Dollars and 11:00 |
a.m. in the case of payments made in an Alternative Currency (or, in each case, such later time as the Administrative Agent may approve in its sole discretion), in each case, in federal funds or other Same Day Funds to the Administrative Agent at account number 01104331628807 at Wells Fargo Bank, National Association, ABA No.: 121 000 248, account name “Agency Services Clearing Account”, reference “AG Twin Brook BDC, Inc.”, or any other account of the Administrative Agent that the Administrative Agent designates in writing to the Borrowers. Funds received after 1:00 p.m. in the case of payments made in Dollars or after 11:00 a.m. in the case of payments made in an Alternative Currency, as applicable, shall (unless otherwise approved by the Administrative Agent) be treated for all purposes as having been received by the Administrative Agent on the first Business Day next following receipt of such funds. All payments shall be made in the currency of the related Borrowing.
| (b) | Lender Payments. Except as provided in Section 12.12, each Lender shall be entitled to receive its Pro Rata Share of each payment received by the Administrative Agent hereunder for the account of the Lenders on the Facility Obligations. Each payment received by the Administrative Agent hereunder for the account of a Lender shall be promptly distributed by the Administrative Agent to such Lender. The Administrative Agent and each Lender hereby agree that payments to the Administrative Agent by the Borrowers of principal of, and interest on, the Facility Obligations by the Borrowers to or for the account of the Lenders in accordance with the terms of this Credit Agreement, the Notes and the other Loan Documents shall constitute satisfaction of the Borrowers’ obligations with respect to any such payments, and the Administrative Agent shall indemnify, and each Lender shall hold harmless, the Borrowers from any claims asserted by any Lender in connection with the Administrative Agent’s duty to distribute and apportion such payments to the Lenders in accordance with this Section 3.4. |
| (c) | Application of Payments. So long as no Event of Default has occurred and is continuing, all payments made on the Obligations shall be applied as directed by the Borrowers. At all times when an Event of Default has occurred and is continuing, all payments made on the Obligations shall be credited, to the extent of the amount thereof, in the following manner: (i) first, against all costs, expenses and other fees (including |
attorneys’ fees) arising under the terms hereof; (ii) second, against the amount of interest accrued and unpaid on the Facility Obligations as of the date of such payment; (iii) third, pro rata against: (a) all Principal Obligations due and owing to the Lenders as of the date of such payment and (b) the Hedge Termination Values of each Lender Hedge Agreement that has been allocated a Trade Allocation as of the date of such payment; provided that the aggregate Hedge Termination Values of each Specified Hedge Bank’s Lender Hedge Agreements shall not exceed such Specified Hedge Bank’s aggregate Trade Allocations as of the date of such payment for purposes of this subsection (iii); (iv) fourth, to all other amounts constituting any portion of the Facility Obligations; and (v) fifth, against any remaining amounts due and owing in respect of Lender Hedge Agreements pro rata based on each applicable Specified Hedge Bank’s share of the Obligations of such Fund Borrower or such entity guaranteed by a Fund Borrower then outstanding.
| (a) | Voluntary Prepayments. The Borrowers may, upon written notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty on any Business Day; provided that: (i) such notice must be received by the Administrative Agent not later than 12:00 p.m. (or such later time as the Administrative Agent may approve in its sole discretion) (A) three (3) Business Days prior to any date of prepayment of LIBOR Rate Loans (other than any LIBOR Rate Loan based on Daily LIBOR) denominated in Dollars, (B) four (4) Business Days prior to any date of prepayment of LIBOR Rate Loans (other than any LIBOR Rate Loan based on Daily LIBOR) denominated in an Alternative Currency; and (C) one (1) Business Day prior to any date of prepayment of Reference Rate Loans or any LIBOR Rate Loan based on Daily LIBOR; and (ii) any prepayment of Loans shall be in a principal amount of |
$500,000 or a whole multiple of $100,000 in excess thereof (or the Dollar Equivalent thereof) or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date (which shall be a Business Day) and amount of such prepayment. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such written notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 4. Each such prepayment shall be applied to the Facility Obligations held by each Lender in accordance with its respective Pro Rata Share.
| (i) | Excess Loans Outstanding. If, on any day the Dollar Equivalent of the Principal Obligations exceeds the Available Commitment (including as a result of an Exclusion Event), then the Borrowers shall pay without further demand such excess to the Administrative Agent, for the benefit of the Lenders, in Same Day Funds (except to the extent any such excess is addressed by Section 3.5(b)(ii)), by the Required Payment Time. Each Credit Party hereby agrees that the Administrative Agent may withdraw from any Collateral Account any Capital |
Contributions deposited therein and apply the same to the Principal Obligations until such time as the payment obligations of this Section 3.5(b) have been satisfied in full.
| (ii) | Excess Letters of Credit Outstanding. If any excess calculated pursuant to Section 3.5(b) is attributable to undrawn Letters of Credit, the Borrowers shall promptly Cash Collateralize such excess with the Administrative Agent pursuant to the terms of Section 2.13(h), as security for such portion of the Obligations. Unless otherwise required by Applicable Law, upon: (A) a change in circumstances such that the Dollar Equivalent of Principal Obligations no longer exceeds the Available Commitment; or (B) the full and final payment of the Obligations (other than Obligations in respect of a Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.16(h)) and the expiration or termination of all Letters of Credit, so long as no Event of Default or Potential Default has occurred and is continuing, the Administrative Agent shall return to the Borrowers any amounts remaining in said Cash Collateral Account. |
| 3.6 | Reduction or Early Termination of Commitments. So long as no Request for Borrowing or Request for Letter of Credit is outstanding, the Borrowers may terminate the Commitments, or reduce the Maximum Commitment, by giving prior irrevocable written notice to the Administrative Agent of such termination or reduction three (3) Business Days prior to the effective date of such termination or reduction (which date shall be specified by the Borrowers in such notice and shall be a Business Day): (a) (i) in the case of complete termination of the Commitments, upon prepayment of all of the outstanding Facility Obligations, including all interest accrued thereon, in accordance with the terms of Section 3.3; or (ii) in the case of a reduction of the Maximum Commitment, upon prepayment of the amount by which the Principal Obligations exceed the reduced Available Commitment resulting from such reduction, including payment of all interest accrued thereon, in accordance with the terms of Section 3.3; provided that, the Maximum Commitment may not be terminated or reduced such that, the Available Commitment would be less than the aggregate stated amount of outstanding Letters of Credit unless such Letters of Credit are Cash Collateralized in an amount equal to or greater than the Minimum Collateral Amount; and (b) in the case of the complete termination of the Commitments, |
(i) if any Letter of Credit Liability exists, upon payment to the Administrative Agent of the Cash Collateral for deposit in the Cash Collateral Account in accordance with Section 2.13(h) and (ii) if and to the extent any Obligations remain under any Lender Hedge Agreements, such Obligations must be cash collateralized or paid in accordance with the terms of such Lender Hedge Agreement. Notwithstanding the foregoing: (x) any reduction of the Maximum Commitment shall be in an amount equal to $5,000,000 or multiples thereof; and (y) in no event shall a reduction by the Borrowers reduce the Maximum Commitment to less than $10,000,000 (except for a termination of all the Commitments). Promptly after receipt of any notice of reduction or termination, the Administrative Agent shall notify each Lender of the same. Any reduction of the Maximum Commitment shall reduce the Commitments of the Lenders according to their Pro Rata Share.
| 3.7 | Lending Office. Each Lender may: (a) designate its principal office or a branch, subsidiary or Affiliate of such Lender as its Lending Office (and the office to whose accounts payments are to be credited) for any Loan and (b) change its Lending Office from time to time by |
notice to the Administrative Agent and the Borrowers. In such event, the Administrative Agent shall continue to hold the Note, if any, evidencing the Loans attributable to such Lender for the benefit and account of such branch, subsidiary or Affiliate. Each Lender shall be entitled to fund all or any portion of its Commitment in any manner it deems appropriate, consistent with the provisions of Section 2.5.
| 3.8 | Joint and Several Liability. Each Borrower acknowledges, agrees, represents and warrants the following: |
| (a) | Inducement. The Lenders have been induced to make the Loans to, and the Letter of Credit Issuer has been induced to issue Letters of Credit for the account of, and the Specified Hedge Banks have been induced to enter into Lender Hedge Agreements with, the Borrowers in part based upon the assurances by each Borrower that each Borrower desires that all Obligations under the Loan Documents be honored and enforced as separate obligations of each Borrower, should the Administrative Agent and the Lenders desire to do so. |
| (b) | Combined Liability. Notwithstanding the foregoing, the Borrowers shall be jointly and severally liable to the Lenders for all representations, warranties, covenants, obligations and indemnities, including, without limitation, the Loans, the Letters of Credit and the other Obligations, and the Administrative Agent and the Lenders may at their option enforce the entire amount of the Loans, the Letters of Credit and the other Obligations against any one or more of the Borrowers. |
| (c) | Separate Exercise of Remedies. The Administrative Agent (on behalf of the Secured Parties) may exercise remedies against each Borrower and its property separately, whether or not the Administrative Agent exercises remedies against any other Borrower or its property. The Administrative Agent may enforce one or more Borrower’s obligations without enforcing any other Borrower’s obligations and vice versa. Any failure or inability of the Administrative Agent to enforce one or more Borrower’s obligations shall not in any way limit the Administrative Agent’s right to enforce the obligations of the other Borrowers. If the Administrative Agent forecloses or exercises similar remedies under any one or more Collateral Documents, then such foreclosure or similar remedy shall be deemed to reduce the balance of the Loans only to the extent of the cash proceeds actually realized by the Lenders from such foreclosure or similar remedy or, if applicable, the Administrative Agent’s credit bid at such sale, regardless of the effect of such foreclosure or similar remedy on the Loans secured by such Collateral Documents under the applicable state law. |
| 4. | CHANGE IN CIRCUMSTANCES. |
| (a) | Defined Terms. For purposes of this Section 4.1, the term “Lender” includes the Letter of Credit Issuer and the term “Applicable Law” includes FATCA. |
| (b) | Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Loan Document shall be made without deduction |
or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then (i) the applicable Withholding Agent shall be entitled to make such deduction or withholding, (ii) the applicable 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 an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 4) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
| (c) | Payment of Other Taxes by the Credit Parties. Without duplication of other amounts payable by the Borrowers pursuant to Section 4.1(b) above, each Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes. |
| (i) | Each Borrower shall, and each does hereby, jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 4.1) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. |
| (ii) | Each Lender shall, and does hereby, severally indemnify the Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for (x) any Indemnified Taxes attributable to such Lender (but only to the extent that any Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of any Borrower to do so), (y) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.11 relating to the maintenance of a Participant Register and (z) any Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability in reasonable detail 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 Credit Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).
| (e) | Evidence of Payments. As soon as practicable after any payment of Taxes by a Credit Party to a Governmental Authority, such Credit Party 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. |
| (i) | Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested in writing by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested in writing by the Borrowers 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 reasonably requested in writing by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested in writing by the Borrowers or the Administrative Agent as will enable the Borrowers 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 Sections 4.1(f)(ii)(A), 4.1(f)(ii)(B) and 4.1(f)(ii)(D) 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, in the event that a Borrower is a U.S. Person, |
| (A) | any Lender that is a U.S. Person under this Credit Agreement shall deliver to such Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender (and from time to time thereafter upon the reasonable written request of such Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; |
| (B) | any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested in writing by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Credit Agreement (and from time to time thereafter upon the reasonable |
written request of the Borrowers or the Administrative Agent), 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 (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, |
U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W- 8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
| (2) | executed copies of IRS Form W-8ECI; |
| (3) | in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit R-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or |
| (4) | to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-BEN-E, a |
U.S. Tax Compliance Certificate substantially in the form of Exhibit R-2 or Exhibit R-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a
U.S. Tax Compliance Certificate substantially in the form of
Exhibit R-4 on behalf of each such direct and indirect partner;
| (C) | any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested in writing by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Credit Agreement (and from time to time thereafter upon the reasonable written request of the Borrowers or the Administrative Agent), executed |
copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
| (D) | if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 4.1(f)(ii)(D), “FATCA” shall include any amendments made to FATCA after the Closing Date. |
Each Lender agrees that if any form or certification it previously delivered becomes inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
| (g) | Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 4.1 (including by the payment of additional amounts pursuant to this Section 4.1), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 4 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the written request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 4.1(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 4.1(g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 4.1(g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and 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 Section 4.1(g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
| (h) | Survival. Each party’s obligations under this Section 4.1 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. |
| (i) | On or before the date the Administrative Agent becomes a party to this Agreement, the Administrative Agent shall deliver to the Initial Borrower an executed copy of IRS Form W-9 certifying that such Administrative Agent is exempt from U.S. federal backup withholding. At any time thereafter, the Administrative Agent shall provide updated documentation previously provided (or a successor form thereto) when any documentation previously provided has expired or become obsolete or invalid or otherwise upon the reasonable request of the Borrowers. |
| 4.2 | Illegality. (a) If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority having jurisdiction over such Lender has asserted that it is unlawful, for any Lender or its Lending Office to make, maintain or fund Loans or other Facility Obligations, or materially restricts the authority of such Lender to (i) purchase or sell, or to take deposits of, the applicable currency or (ii) determine or charge interest rates based upon the LIBOR Rate, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, (A) in the case of any determination described in the foregoing clause (i), any obligation of such Lender to make or continue Loans or the Obligations in such currency shall be suspended until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist and, until such time, the Loans or Facility Obligations of such Lender in such currency shall, at the option of the Borrower, be converted to, and shall continue, as Reference Rate Loans and Facility Obligations denominated in Dollars in an amount equal to the aggregate Dollar Equivalent of such Loans and Obligations immediately prior to such suspension, and (B) in the case of any determination described in the foregoing clause (ii), any obligation of such Lender to maintain Loans accruing interest at the LIBOR Rate, or to convert Loans accruing interest calculated by reference to the Reference Rate (without giving effect to clause (c) of the definition of Reference Rate) to be Loans accruing interest calculated by reference to the LIBOR Rate, shall be suspended until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist and, until such time, the Loans or Obligations of such Lender outstanding at the time of such suspension shall, at the option of the applicable Borrower, be continued either (i) as Reference Rate Loans if denominated in Dollars or (ii) as Cost of Funds Rate Loans if denominated in an Alternate Currency. Upon the prepayment of any such Loans, the applicable Borrower shall also pay accrued and unpaid interest on the amount so prepaid. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. |
| 4.3 | Inability to Determine Rates. If the Administrative Agent reasonably determines, for any proposed Interest Period, that: (a) deposits in Dollars are not being offered to banks in the applicable offshore market for the applicable amount and Interest Period of any LIBOR Rate Loan; or (b) LIBOR does not adequately or fairly reflect the cost to the Lenders of funding or maintaining any LIBOR Rate Loan, then: (i) the Administrative Agent shall forthwith notify the Lenders and the Borrowers; and (ii) while such circumstances exist, none of the Lenders shall allocate any Loans made during such period, or reallocate any Loans allocated to any then-existing Interest Period ending during such period, to an Interest Period with respect to which interest is calculated by reference to LIBOR. If, with respect to any outstanding Interest Period, a Lender notifies the Administrative Agent that it is unable to obtain matching deposits in the London interbank market to fund its purchase or maintenance of such Loans or that LIBOR applicable to such Loans will not adequately reflect the cost to the Person of funding or maintaining such Loans for such Interest Period, then: (A) the Administrative Agent shall forthwith so notify the Borrowers and the Lenders; and (B) upon such notice and thereafter while such circumstances exist, the applicable Lender shall not make any LIBOR Rate Loans during such period or reallocate any Loans allocated to any Interest Period ending during such period, to an Interest Period with respect to which interest is calculated by reference to LIBOR; provided that, (x) if the foregoing notice relates to Loans that are outstanding as LIBOR Rate Loans, such Loans shall be Converted to Reference Rate Loans if denominated in Dollars or LIBOR Rate Loans based off the Cost of Funds Rate if denominated in an Alternative Currency only on the last day of the then-current Interest Period, and (y) upon receipt of such notice, the Borrowers may revoke any outstanding Requests for Borrowing. |
| 4.4 | Effect of Benchmark Transition Event. |
| (a) | Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Credit Agreement to replace LIBOR with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrowers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBOR with a Benchmark Replacement pursuant to this Section 4.4 will occur prior to the applicable Benchmark Transition Start Date. |
| (b) | Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, 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 Credit Agreement. |
| (c) | Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrowers and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 4.4, 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 hereto, except, in each case, as expressly required pursuant to this Section 4.4. |
| (d) | Benchmark Unavailability Period. Upon the Borrowers’ receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowers may revoke any request for a Borrowing of, conversion to or continuation of any LIBOR Rate Loan to be made, converted or continued during any Benchmark Unavailability Period, provided that, if such request is not revoked, the Borrowers will be deemed to have converted any such request into a request for a Borrowing of or conversion to a Reference Rate Loan. During any Benchmark Unavailability Period, the component of Reference Rate based upon LIBOR will not be used in any determination of Reference Rate. |
| 4.5 | Increased Cost and Capital Adequacy. |
| (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 advances, loans or other credit extended or participated in by, any Lender (except any reserve requirement reflected in Adjusted LIBOR) or any Letter of Credit Issuer; or |
| (ii) | subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income 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 Letter of Credit Issuer or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Credit Agreement or Loans made by such Lender or the Letter of Credit Issuer or participation therein; |
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount
of any sum received or receivable by such Lender or Letter of Credit Issuer or such other Recipient participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, the Letter of Credit Issuer or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, the Letter of Credit Issuer or other Recipient, the Borrowers shall pay within the Required Payment Time to any such Lender, the Letter of Credit Issuer or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or the Letter of Credit Issuer, as the case may be, for such additional costs incurred or reduction suffered.
| (b) | Capital Requirements. If any Lender or the Letter of Credit Issuer reasonably determines that any Change in Law affecting such Lender or the Letter of Credit Issuer or any Lending Office of such Lender or such Lender’s or the Letter of Credit Issuer’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or the Letter of Credit Issuer’s capital or on the capital of such Lender’s or the Letter of Credit Issuer’s holding company, if any, as a consequence of this Credit Agreement, the Commitment of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Letter of Credit Issuer, to a level below that which such Lender or the Letter of Credit Issuer or such Lender’s or the Letter of Credit Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Letter of Credit Issuer’s policies and the policies of such Lender’s or the Letter of Credit Issuer’s holding company with respect to capital adequacy), then from time to time upon written request of such Lender or such Letter of Credit Issuer, as applicable, the Borrowers shall pay to such Lender or the Letter of Credit Issuer, as the case may be, by the Required Payment Time, such additional amount or amounts as will compensate such Lender or the Letter of Credit Issuer or such Lender’s or the Letter of Credit Issuer’s holding company for any such reduction suffered. |
| (c) | Certificates for Reimbursement. A certificate of a Lender or the Letter of Credit Issuer setting forth the calculations showing the amount or amounts necessary to compensate such Lender or the Letter of Credit Issuer, as the case may be, as specified in Section 4.5(a) or Section 4.5(b) and delivered to the Borrowers, shall be conclusive absent manifest error. The Borrowers shall pay such Lender or the Letter of Credit Issuer, as the case may be, the amount shown as due on any such certificate by the Required Payment Time. |
| (d) | Delay in Requests. Failure or delay on the part of any Lender or the Letter of Credit Issuer to demand compensation pursuant to this Section 4 shall not constitute a waiver of such Lender’s or the Letter of Credit Issuer’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender or the Letter of Credit Issuer pursuant to this Section 4 for any increased costs incurred or reductions suffered if such Lender or the Letter of Credit Issuer, as the case may be, fails to notify Borrowers of such increased cost or reduction suffered, and of such Lender’s or Letter of Credit Issuer’s intention to claim compensation therefor, within six (6) months following |
the later of (i) the date of the incurrence of such increased cost or reduction suffered (except that if a Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof), and (ii) the date on which such Lender or Letter of Credit Issuer became actually aware of such increased costs or reduction suffered.
| 4.6 | Funding Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly pay the Administrative Agent for the account of such Lender, such amount or amounts as shall compensate such Lender for, and hold such Lender harmless from, any loss (other than lost profits), cost or expense incurred by such Lender in obtaining, liquidating or employing deposits or other funds from third parties as a result of (a) any failure or refusal of the Borrowers (for any reasons whatsoever other than a default by the Administrative Agent or any Lender) to accept a Loan after the Borrowers shall have requested such Loan under this Credit Agreement, (b) any prepayment or other payment of a LIBOR Rate Loan on a day prior to the last day of the Interest Period applicable to such Loan, (c) any other prepayment of a Loan that is otherwise not made in compliance with the provisions of this Credit Agreement, (d) the failure of the Borrowers to make a prepayment of a Loan after giving notice under this Credit Agreement, that such prepayment will be made, or (e) the failure of any Borrower Party to make payment of any Loan denominated in an Alternative Currency on its scheduled due date or any payment thereof in a different currency. |
| 4.7 | Requests for Compensation. If requested by the Borrowers in connection with any demand for payment pursuant to this Section 4, a Lender shall provide to the Borrowers, with a copy to the Administrative Agent, a certificate setting forth in reasonable detail the basis for such demand, the amount required to be paid by the Borrowers to such Lender and the computations made by such Lender to determine such amount, such certificate to be conclusive and binding in the absence of manifest error. This Section 4.7 shall not be construed to require any Lender to make available its Tax returns (or any other information relating to its Taxes that it reasonably deems confidential) to the Borrowers or any other Person, as long as the certificate described in the immediately preceding sentence is provided. Any such amount payable by the Borrowers shall not be duplicative of any amounts (a) previously paid under this Section 4, or (b) included in the calculation of LIBOR. |
| 4.8 | Survival. Without prejudice to the survival of any other agreement of the Borrowers hereunder, all of the Borrowers’ obligations under this Section 4 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and Commitments or the termination of this Credit Agreement or any provision hereof. Each Lender shall notify the Borrowers of any event occurring after the termination of this Credit Agreement entitling such Lender to compensation under this Section 4 as promptly as practicable. |
| 4.9 | Mitigation Obligations; Replacement of Lenders. |
| (a) | Designation of a Different Lending Office. If any Lender requests compensation under Section 4.5, or requires any Borrower to pay additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 4.1, then such Lender shall, at the request of the Borrowers, use reasonable efforts |
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 judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 4.5 or Section 4.1, or remove the prohibition pursuant to Section 4.2, as the case may be, in the future, and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. The Borrowers hereby agree 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 requests compensation under Section 4.5, or if any Borrower is required to pay additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 4.1 or is unable to fund a LIBOR Rate Loan pursuant to Section 4.2, and, in each case, such Lender has declined or is unable to designate a different Lending Office in accordance with Section 4.9(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrowers may, at their sole expense and effort, so long as no Event of Default or Potential Default has occurred and is continuing, 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, and consents required by, Section 12.11), all of its interests, rights (other than its existing rights to payments pursuant to Section 4.5 or Section 4.1) and obligations under this Credit Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which Assignee may be another Lender, if a Lender accepts such assignment); provided that: |
| (i) | the Borrowers shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 12.11; |
| (ii) | such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under this Section 4) from the Assignee (to the extent of such outstanding principal) or the Borrowers (in the case of accrued interest, fees and all other amounts); |
| (iii) | in the case of any such assignment resulting from a claim for compensation under Section 4.5 or payments required to be made pursuant to Section 4.1, such assignment will result in a reduction in such compensation or payments thereafter; |
| (iv) | such assignment does not conflict with Applicable Law; and |
| (v) | in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Assignee shall have consented to the applicable amendment, waiver or consent. |
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
| 4.10 | Cash Collateral. At any time that there shall exist a Defaulting Lender, by the Required Payment Time, the Borrowers shall Cash Collateralize the Fronting Exposure of the Letter of Credit Issuer with respect to such Defaulting Lender (determined after giving effect to Section 12.12(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount. |
| (a) | Grant of Security Interest; Other Claims/Deficiency. (i) The Borrowers, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Letter of Credit Issuer, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of the Letter of Credit Liability, to be applied pursuant to Section 4.10(b). (ii) If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the Letter of Credit Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrowers will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender). |
| (b) | Application. Notwithstanding anything to the contrary contained in this Credit Agreement, Cash Collateral provided under this Section 4.10 or Section 12.12 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of the Letter of Credit Liability (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein. |
| (c) | Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce the Fronting Exposure of the Letter of Credit Issuer shall no longer be required to be held as Cash Collateral pursuant to this Section 4.10 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the Letter of Credit Issuer that there exists Cash Collateral in excess of the Minimum Collateral Amount; provided that, subject to Section 12.12, the Person providing Cash Collateral and the Letter of Credit Issuer may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations; provided, further that, to the extent that such Cash Collateral was provided by the Borrowers, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents. |
| (a) | Capital Commitments and Capital Calls. To secure performance by the Borrowers of the payment and the performance of the Obligations, the Credit Parties, each to the extent of their respective interests therein, shall grant to the Administrative Agent, for the benefit of each of the Secured Parties, a first priority security interest and Lien in and on the Collateral pursuant to the Security Agreements, the related financing statements and the other related documents. |
| (b) | Reliance. The Fund Parties agree that the Administrative Agent and each Lender and the Letter of Credit Issuer have entered into this Credit Agreement, extended credit hereunder and at the time of each Loan or each issuance of a Letter of Credit, will make such Loan or issue such Letter of Credit in reasonable reliance on the obligations of the Investors to fund their respective Capital Commitments as shown in their Subscription Agreements delivered in connection herewith and accordingly, it is the intent of the parties that such Capital Commitments may be enforced by the Administrative Agent, subject to the provisions of Section 10.2(b), on behalf of the Lenders and other Secured Parties, pursuant to the terms of the Loan Documents, directly against the Investors without further action by any Credit Party, and notwithstanding any compromise of any such Capital Commitment by any Credit Party, as applicable, after the Closing Date. |
The security agreements, financing statements, assignments, collateral assignments and any other documents and instruments from time to time executed and delivered pursuant to this Credit Agreement to grant, perfect and continue a Lien in the Collateral, including the Security Agreements, the Collateral Account Pledges and the Control Agreements, and any documents or instruments amending or supplementing the same, shall be collectively referred to herein as the “Collateral Documents.”
| 5.2 | The Collateral Accounts; Capital Calls. |
| (a) | The Collateral Accounts. In order to secure further the payment and the performance of the Obligations and to effect and facilitate the right of the Secured Parties, the Fund Parties shall require that Investors in the Fund Parties wire transfer to such Fund Party’s Collateral Account all monies or sums paid or to be paid by the Investors pursuant to Capital Calls. In addition, each Credit Party shall promptly deposit into the applicable Collateral Account any payments and monies that such Credit Party receives directly from Investors as Capital Contributions. |
| (b) | Use of the Collateral Accounts. The Credit Parties may withdraw funds from the Collateral Accounts only in compliance with Section 9.18. Upon the occurrence and during the continuance of a Cash Control Event, the Administrative Agent is authorized to take exclusive control of the Collateral Accounts. If the applicable Account Bank with respect to any Collateral Account ceases to be Wells Fargo or an Eligible Institution, each applicable Fund Party shall have thirty (30) days following notice from the Administrative Agent to move its Collateral Account to a replacement Account Bank |
that is Wells Fargo or an Eligible Institution. If an Account Bank terminates a Control Agreement, the applicable Fund Party shall open a new collateral account that is subject to a new Control Agreement with a replacement Account Bank within thirty (30) days (or such later period as may be agreed by the Administrative Agent in its sole discretion) of the earlier of (i) such termination and (ii) the terminating Account Bank providing notice of its intent to terminate such Control Agreement.
| (c) | No Duty. Notwithstanding anything to the contrary herein contained, it is expressly understood and agreed that neither the Administrative Agent, Letter of Credit Issuer, nor any other Secured Party undertakes any duties, responsibilities, or liabilities with respect to the Capital Calls issued by the Fund Parties. None of them shall be required to refer to the Constituent Documents of any Credit Party, or a Subscription Agreement or any Side Letter, or take any other action with respect to any other matter that might arise in connection with the Constituent Documents of any Credit Party, a Subscription Agreement, a Side Letter or any Capital Call. None of them shall have any duty to determine or inquire into any happening or occurrence or any performance or failure of performance of any Credit Party or any of the Investors. None of them shall have any duty to inquire into the use, purpose, or reasons for the making of any Capital Call by any Credit Party or the Investment or use of the proceeds thereof. |
| (d) | Capital Calls and Disbursements from the Collateral Accounts. Each Credit Party hereby irrevocably authorizes and directs the Secured Parties, acting through the Administrative Agent, to charge from time to time the Collateral Accounts, and any other accounts of any Credit Party maintained at any Secured Party (including the Cash Collateral Account), for amounts not paid when due (after the passage of any applicable grace period) to the Secured Parties or any of them hereunder and under the other Loan Documents; provided that promptly after any disbursement of funds from any such account to the Secured Parties, as contemplated in this Section 5.2(d), the Administrative Agent shall deliver a written notice of such disbursement to the Borrowers. |
| (e) | No Representations. Neither the Administrative Agent nor any Secured Party shall be deemed to make at any time any representation or warranty as to the validity of any Capital Call nor shall the Administrative Agent or the Secured Parties be accountable for any Borrower Party’s use of the proceeds of any Capital Contribution. |
| 5.4 | Subordination. During the continuance of an Event of Default or if a mandatory prepayment has been triggered under Section 3.5(b) of this Credit Agreement, and if any Obligations are outstanding at such time, no Credit Party shall make any payments or advances of any kind (except as provided in the following proviso), directly or indirectly, on any debts and liabilities to any other Credit Party, any Investor or the Fund Advisor whether now existing or hereafter arising and whether direct, indirect, several, joint and several, or otherwise, and howsoever evidenced or created (collectively, the “Other Claims”); provided that the Borrowers may reimburse the Fund Advisor for out-of-pocket expenses notwithstanding the continuance of an Event of Default. All Other Claims, together with all Liens on assets securing the payment of all or any portion of the Other Claims, shall at all times during the continuance of an Event of |
Default or if a mandatory prepayment has been triggered under Section 3.5(b) of this Credit Agreement, be subordinated to and junior in right and in payment to the Obligations (other than Obligations in respect of a Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.16(h)) and all Liens on assets securing all or any portion of the Obligations (other than Obligations in respect of a Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.16(h)), and each Credit Party agrees to take such actions as are necessary to provide for such subordination between it and any other Credit Party. The Credit Parties and the Fund Advisor agree that the subordination provisions in this Section 5.4 shall supersede any conflicting provisions of any documents (whether now or hereafter in effect) evidencing the Other Claims. The Fund Advisor acknowledges and agrees that at any time an Event of Default or if a mandatory prepayment has been triggered under Section 3.5(b) of this Credit Agreement, has occurred and is continuing, and if any Obligations are outstanding at such time, the payment of any and all management or other fees due and owing to it from any Credit Party shall be subordinated to and inferior in right and payment to the Obligations (other than Obligations in respect of a Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.16(h)) in all respects.
| 6. | CONDITIONS PRECEDENT TO LENDING. |
| 6.1 | Obligations of the Lenders. The obligation of the Lenders to advance the initial Borrowing hereunder or cause the issuance of the initial Letters of Credit shall not become effective until the date on which (i) the Administrative Agent shall have received each of the following documents and (ii) each of the other conditions listed below is satisfied, the satisfaction of such conditions to be satisfactory to the Administrative Agent (and to the extent specified below, to each Lender) in form and substance (which satisfaction must occur within one (1) Business Day of the date hereof): |
| (a) | Credit Agreement. This Credit Agreement, duly executed and delivered by the Credit Parties; |
| (b) | Note. A Note duly executed and delivered by each Borrower (if required) in accordance with Section 3.1; |
| (c) | Security Agreements. Each Security Agreement, each duly executed and delivered by the parties thereto in favor of the Administrative Agent for the benefit of the Secured Parties; |
| (d) | Collateral Account Pledges. Each Collateral Account Pledge, each duly executed and delivered by the parties thereto in favor of the Administrative Agent for the benefit of the Secured Parties; |
| (e) | Control Agreements. A Control Agreement with respect to each Collateral Account, each duly executed and delivered by the parties thereto; |
| (i) | Satisfactory reports of searches of Filings (or the equivalent in any applicable foreign jurisdiction, as applicable) in the jurisdiction of formation of |
each Credit Party, or where a filing has been or would need to be made in order to perfect the Administrative Agent’s first priority security interest on behalf of the Secured Parties in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist, or, if necessary, copies of proper financing statements, if any, filed on or before the date hereof necessary to terminate all Liens and other rights of any Person in any Collateral previously granted; and
| (ii) | Filings (or the equivalent in any applicable foreign jurisdiction, as applicable) satisfactory to the Administrative Agent with respect to the Collateral together with written evidence reasonably satisfactory to the Administrative Agent that the same have been filed, submitted for filing in the appropriate public filing office(s) (other than any Filings consisting of notice to limited partners of any Fund Party formed in the Cayman Islands, which shall be provided in accordance with Section 8.9(b)) in the Administrative Agent’s sole discretion, to perfect the Secured Parties’ Liens in the Collateral; |
| (g) | Responsible Officer Certificates. A certificate from a Responsible Officer of each Credit Party, in the form of Exhibit L; |
| (h) | The Borrowers’ Constituent Documents. True and complete copies of the Constituent Documents of the Borrowers, together with certificates of existence and good standing (or other similar instruments) of the Borrowers, in each case certified by a Responsible Officer of the Borrowers to be correct and complete copies thereof and in effect on the date hereof and in each case satisfactory to the Administrative Agent in its sole discretion; |
| (j) | Fund Advisor Agreement. A copy of the Fund Advisor Agreement, duly executed by the parties thereto; |
| (k) | Authority Documents. Certified resolutions of each Credit Party, authorizing the execution, delivery and performance of the transactions contemplated herein and in the other Loan Documents, duly adopted by each Credit Party, as required by Applicable Law or agreement, and in each case certified by a Responsible Officer of such Person as correct and complete copies thereof and in effect on the date hereof; |
| (l) | Incumbency Certificate. From each Credit Party (or its general partner, as applicable), a signed certificate of a Responsible Officer, who shall certify the names of the Persons authorized, on the date hereof, to sign each of the Loan Documents and the other documents or certificates to be delivered pursuant to the Loan Documents on behalf of such Credit Party, together with the true signatures of each such Person; the Administrative Agent may conclusively rely on such certificate until it shall receive a further certificate canceling or amending the prior certificate and submitting the authority and signatures of the Persons named in such further certificate; |
| (m) | Opinions. A favorable written opinion of counsel to the Credit Parties in form and substance reasonably satisfactory to the Administrative Agent and its counsel, dated as of the Closing Date; |
| (n) | Investor Documents. With respect to each Investor: (i) a copy of such Investor’s duly executed Subscription Agreement, Side Letter (if applicable), Credit Link Document, if applicable and (ii) if such Investor is an Endowment Fund Investor, a copy of any keepwell agreement in place between such Investor and its Sponsor; |
| (o) | Fees; Costs and Expenses. Payment of all fees and other amounts due and payable on or prior to the date hereof, including pursuant to the Fee Letter, and, to the extent invoiced, reimbursement or payment of all reasonable expenses required to be reimbursed or paid by the Borrowers hereunder, including the fees and disbursements invoiced through the date hereof of the Administrative Agent’s special counsel, Cadwalader, Wickersham & Taft LLP and Carey Olsen, which may be deducted from the proceeds of such initial Borrowing; |
| (p) | ERISA Status. With respect to each Borrower and each Guarantor, either |
| (i) | a favorable written opinion of counsel to such Credit Party, addressed to the Secured Parties, reasonably acceptable to the Administrative Agent and its counsel, regarding the status of such Credit Party as an Operating Company (or a copy of such opinion addressed to the Investors, reasonably acceptable to the Administrative Agent and its counsel, together with a reliance letter with respect thereto, addressed to the Secured Parties); or |
| (ii) | a certificate, addressed to the Secured Parties, signed by a Responsible Officer of such Credit Party that the underlying assets of such Credit Party do not constitute Plan Assets because less than twenty-five percent (25%) of the total value of each class of equity interests in such Credit Party is held by “benefit plan investors” within the meaning of Section 3(42) of ERISA; |
| (q) | Collateral Accounts. Evidence that the Collateral Accounts have been established; |
| (r) | “Know Your Customer” Information and Documents. Such information and documentation as is requested by the Lenders so that each of the Credit Parties has become KYC Compliant; and |
| (s) | Additional Information. Such other information and documents as may be required by the Administrative Agent and its counsel. |
For purposes of determining whether the conditions specified in this Section 6.1 have been satisfied, the Administrative Agent and each Lender shall, by executing and delivering a signature page to this Credit Agreement, be deemed to be satisfied with and to have received each document or other matter required hereunder to be satisfactory to, or received by, the Administrative Agent or such Lender, as the case may be. For the avoidance of doubt, the foregoing statement shall not be deemed to be an acknowledgement of receipt of payment of the fees and expenses required to be paid as specified in this Section 6.1.
| 6.2 | Conditions to all Loans and Letters of Credit. The obligation of the Lenders to advance each Borrowing (including without limitation the initial Borrowing) and the obligation of the Letter of Credit Issuer to cause the issuance of Letters of Credit (including, without limitation, the initial Letter of Credit) hereunder is subject to the conditions precedent that: |
| (a) | Representations and Warranties. The representations and warranties of the Credit Parties set forth herein and in the other Loan Documents are true and correct in all material respects on and as of the date of the advance of such Borrowing or issuance of such Letter of Credit, with the same force and effect as if made on and as of such date; provided that if any such representation and warranty is qualified as to materiality, with respect to such representation and warranty, the materiality qualifier set forth above shall be disregarded for the purposes of this condition; |
| (b) | No Default. No event shall have occurred and be continuing, or would result from the Borrowing or the issuance of a Letter of Credit, which constitutes an Event of Default or a Potential Default; |
| (c) | Request for Borrowing. The Administrative Agent shall have received a Request for Borrowing or Request for Letter of Credit, together with a Borrowing Base Certificate; |
| (d) | No Investor Excuses. Other than as disclosed to the Administrative Agent in writing, the Credit Parties have no knowledge or reason to believe any Investor would be entitled to exercise any withdrawal, excuse or exemption right under the applicable Constituent Documents, its Subscription Agreement or any Side Letter with respect to any Investment being acquired in whole or in part with any proceeds of the related Loan or Letter of Credit (provided, that if the Credit Parties have disclosed a potential excuse or exemption right to the Administrative Agent in writing, the excused, withdrawn or exempted portion of the applicable Investor’s Unfunded Capital Commitment shall be excluded from the calculation of the Borrowing Base (unless the applicable Side Letter explicitly states that such excuse right would not apply to the repayment of the Obligations), but the Borrowers shall not be prohibited from such credit extension upon satisfaction of the other conditions therefor); |
| (e) | Application. In the case of a Letter of Credit, the Letter of Credit Issuer shall have received a Letter of Credit Application executed by the Borrowers; |
| (f) | Available Commitment. After giving effect to the proposed Borrowing or issuance of Letter of Credit, the Dollar Equivalent of the Principal Obligations will not exceed the Available Commitment; |
| (g) | Fees; Costs and Expenses. Payment of all fees and other amounts due and payable by any Credit Party on or prior to the date of such Borrowing and, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by any Credit Party hereunder, including the fees and disbursements invoiced through the date of such Borrowing of the Administrative Agent’s special counsel, Cadwalader, |
Wickersham & Taft LLP and Carey Olsen, which may be deducted from the proceeds of such Borrowing; and
| (h) | Beneficial Ownership Certification. At least three (3) Business Days prior to any Borrowing, each Credit Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, unless there has been no material change to the Beneficial Ownership Certification previously provided to each Lender by such Credit Party, shall have delivered to each Lender an updated Beneficial Ownership Certification (for the avoidance of doubt, if a Credit Party that was not a legal entity customer becomes a legal entity customer, such Credit Party shall deliver to each Lender a Beneficial Ownership Certification in accordance with this Section 6.2(h)). |
| 6.3 | Addition of Qualified Borrowers. The obligation of the Lenders to advance a Borrowing to a proposed Qualified Borrower hereunder or to cause the issuance of a Letter of Credit to a proposed Qualified Borrower is subject to the conditions that the Borrowers shall have given the Administrative Agent at least ten (10) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice and each of the following: |
| (a) | Approval of Qualified Borrower. In order for an entity to be approved as a “Qualified Borrower” (i) the Borrowers must obtain the written consent of each Lender, not to be unreasonably withheld; (ii) such entity shall be one in which a Borrower or another Credit Party owns a direct or indirect ownership interest, or through which a Borrower or another Credit Party may acquire an Investment, the indebtedness of which entity can be guaranteed by a Fund Borrower under its Constituent Documents (a “Qualified Borrower”); and (iii) the provisions of this Section 6.3 shall be satisfied; |
| (b) | Guaranty of Qualified Borrower Obligations. The applicable Fund Borrower (other than a Qualified Borrower) shall provide to the Administrative Agent and each of the Lenders an unconditional guaranty of payment in the form of Exhibit J (the “Qualified Borrower Guaranty”, and such guaranties, collectively, the “Qualified Borrower Guaranties”), which shall be acknowledged and agreed to by the Guarantors, and enforceable against such Fund Borrower for the payment of a Qualified Borrower’s debt or obligation to the Lenders; |
| (c) | Qualified Borrower Promissory Note. Such Qualified Borrower shall execute and deliver a promissory note, in the form of Exhibit I (a “Qualified Borrower Promissory Note”), payable to the Administrative Agent, for the benefit of the Secured Parties; |
| (d) | Authorizations of Qualified Borrower. The Administrative Agent shall have received from the Qualified Borrower appropriate evidence of the authorization of the Qualified Borrower approving the execution, delivery and performance of the Qualified Borrower Promissory Note, duly adopted by the Qualified Borrower, as required by Applicable Law or agreement, and accompanied by a certificate of an authorized Person of such Qualified Borrower stating that such authorizations are true and correct, have not been altered or repealed and are in full force and effect; |
| (e) | Incumbency Certificate. The Administrative Agent shall have received from such Qualified Borrower a signed certificate of a Responsible Officer of the Qualified Borrower which shall certify the names of the Persons authorized to sign the Qualified Borrower Promissory Note and the other documents or certificates to be delivered pursuant to the terms hereof by such Qualified Borrower, together with the true signatures of each such Person. The Administrative Agent may conclusively rely on such certificate until it shall receive a further certificate canceling or amending the prior certificate and submitting the authority and signatures of the Persons named in such further certificate; |
| (f) | Opinion of Counsel to Qualified Borrowers. The Administrative Agent shall have received a favorable written opinion of counsel for such Qualified Borrower, in form and substance reasonably satisfactory to the Administrative Agent; |
| (g) | Opinion of Counsel to the Borrower. The Administrative Agent shall have received a favorable written opinion of counsel for the Borrowers with respect to the Qualified Borrower Guaranty, in form and substance reasonably satisfactory to the Administrative Agent; |
| (h) | “Know Your Customer” Information and Documents. The Lenders shall have received all items required to make such Qualified Borrower KYC Compliant; |
| (i) | Beneficial Ownership Certification. If such Qualified Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Lenders shall have received, sufficiently in advance of (but in any event not less than three (3) Business Days prior to) the date such Person becomes a Qualified Borrower, a Beneficial Ownership Certification in relation to such Qualified Borrower; |
| (j) | Fees, Costs and Expenses. Payment of all fees and other invoiced amounts due and payable by any Credit Party on or prior to the date such Qualified Borrower becomes a Qualified Borrower hereunder and, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by any Credit Party hereunder, which may be deducted from the proceeds of any related Borrowing; |
| (k) | Due Diligence Review. The Administrative Agent shall have completed to its satisfaction its due diligence review of such Qualified Borrower; |
| (l) | ERISA Status. With respect to the initial advance to such Qualified Borrower only, either (i) a favorable written opinion of counsel to such Qualified Borrower, addressed to the Secured Parties, reasonably acceptable to the Administrative Agent and its counsel, regarding the status of such Qualified Borrower as an Operating Company (or a copy of such opinion addressed to the Investors, reasonably acceptable to the Administrative Agent and its counsel, together with a reliance letter with respect thereto, addressed to the Secured Parties); or (ii) a certificate, addressed to the Secured Parties, signed by a Responsible Officer of such Qualified Borrower that the underlying assets of such Qualified Borrower do not constitute Plan Assets because less than twenty-five percent (25%) of the total value of each class of equity interests in such |
Qualified Borrower is held by “benefit plan investors” within the meaning of Section 3(42)
of ERISA; and
| (m) | Additional Information. The Administrative Agent shall have received such other information and documents in respect of such Qualified Borrower as may be required by the Administrative Agent and its counsel. |
Upon the satisfaction of the requirements of this Section 6.3 described above, such Qualified Borrower shall be bound by the terms and conditions of this Credit Agreement as if it were a Qualified Borrower hereunder. For purposes of determining whether the conditions specified in this Section 6.3 have been satisfied, the Administrative Agent and each Lender shall, by providing written notice confirming the joinder is effective, be deemed to be satisfied with and to have received each document or other matter required hereunder to be satisfactory to, or received by, the Administrative Agent or such Lender, as the case may be. For the avoidance of doubt, the foregoing statement shall not be deemed to be an acknowledgement of receipt of payment of the fees and expenses required to be paid as specified in this Section 6.3.
| 6.4 | Addition of Guarantors. The Borrowers may at any time request that any Parallel Investment Vehicle or Alternative Investment Vehicle be joined as a guarantor (any such Person, a “Guarantor”). Such joinder is subject to the Borrowers giving the Administrative Agent at least ten (10) Business Days’ prior written notice (or such shorter period as the Lenders may agree in their sole discretion) and each of the following: |
| (a) | Approval of Guarantor. In order for an entity to be approved as an Guarantor, (i) the Borrowers must obtain the written consent of each Lender, such consent not to be unreasonably withheld; (ii) such entity shall be either an Alternative Investment Vehicle or a Parallel Investment Vehicle of a Fund Party; and (iii) the provisions of this Section 6.4 shall be satisfied; |
| (b) | Joinder and Security of Guarantor Obligations. The Guarantor and its general partner (if applicable) shall provide to the Administrative Agent and each of the Lenders duly executed documentation in form and substance reasonably acceptable to the Administrative Agent, including but not limited to a joinder agreement to this Credit Agreement (pursuant to which it agrees to guaranty all Obligations), Collateral Documents and such other Loan Documents and Filings as the Administrative Agent may reasonably request; |
| (c) | Authorizations of Guarantor. The Administrative Agent shall have received from such Guarantor and its general partner (if applicable) appropriate evidence of the authorization of such Guarantor and its general partner (if applicable) approving the execution, delivery and performance of its applicable Collateral Documents and any other Loan Documents required of such Guarantor and its general partner (if applicable), duly adopted by such Guarantor and its general partner (if applicable), as required by Applicable Law or agreement, and accompanied by a certificate of an authorized Person of such Guarantor and its general partner (if applicable) stating that such authorizations are true and correct, have not been altered or repealed and are in full force and effect; |
| (d) | Responsible Officer Certificates. A certificate from a Responsible Officer of such Guarantor in the form of Exhibit L; |
| (e) | Constituent Documents. True and complete copies of the Constituent Documents of such Guarantor, together with certificates of existence and good standing (or other similar instruments) of such Guarantor, in each case certified by a Responsible Officer of such Person to be correct and complete copies thereof and in effect on the date such Guarantor becomes a Guarantor hereunder and in each case satisfactory to the Administrative Agent in its sole discretion; |
| (f) | ERISA Status. Either (i) a favorable written opinion of counsel to such Guarantor addressed to the Secured Parties, reasonably acceptable to the Administrative Agent and its counsel, regarding the status of such Guarantor as an Operating Company (or a copy of such opinion addressed to the Investors, reasonably acceptable to the Administrative Agent and its counsel, together with a reliance letter with respect thereto, addressed to the Secured Parties) or |
(ii) a certificate, addressed to the Secured Parties, signed by a Responsible Officer of such Guarantor that the underlying assets of such Credit Party do not constitute Plan Assets because participation in each class of equity interests in such Credit Party by “benefit plan investors” is not “significant” within the meaning of the Plan Asset Regulations;
| (g) | Incumbency Certificate. The Administrative Agent shall have received from such Guarantor and its general partner (if applicable) a signed certificate of a Responsible Officer of such Guarantor and its general partner( if applicable) which shall certify the names of the Persons authorized to sign the Loan Documents to be delivered pursuant to the terms hereof by such Guarantor and its general partner (if applicable), together with the true signatures of each such Person. The Administrative Agent may conclusively rely on such certificate until it shall receive a further certificate canceling or amending the prior certificate and submitting the authority and signatures of the Persons named in such further certificate; |
| (h) | Opinion of Counsel to Guarantor. The Administrative Agent shall have received a favorable written opinion of counsel for such Guarantor and its general partner (if applicable), in form and substance satisfactory to the Administrative Agent; |
| (i) | “Know Your Customer” Information and Documents. The Lenders shall have received all items required to make such Guarantor and its general partner (if applicable) KYC Compliant; |
| (k) | Fees, Costs and Expenses. Payment of all fees and other invoiced amounts due and payable by any Credit Party on or prior to the date such Guarantor becomes a Guarantor hereunder and, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by any Credit Party hereunder; |
| (l) | Due Diligence Review. The Administrative Agent shall have completed to its satisfaction its due diligence review of such Guarantor, and its respective management, controlling owners, systems and operations; and |
| (m) | Additional Information. The Administrative Agent shall have received such other information and documents in respect of such Guarantor as may be required by the Administrative Agent and its counsel. |
Upon the satisfaction of the requirements of this Section 6.4 described above, the related Guarantor and its general partner (if applicable) shall be bound by the terms and conditions of this Credit Agreement as a Guarantor and a General Partner (if applicable) hereunder. For purposes of determining whether the conditions specified in this Section 6.4 have been satisfied, the Administrative Agent and each Lender shall, by providing written notice confirming the joinder is effective, be deemed to be satisfied with and to have received each document or other matter required hereunder to be satisfactory to, or received by, the Administrative Agent or such Lender, as the case may be. For the avoidance of doubt, the foregoing statement shall not be deemed to be an acknowledgement of receipt of payment of the fees and expenses required to be paid as specified in this Section 6.4.
| 7. | REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES. |
To induce the Lenders to make the Loans and cause the issuance of Letters of Credit hereunder, each of the Credit Parties hereby represents and warrants to the Administrative Agent and the Lenders that:
| 7.1 | Organization and Good Standing. Each Credit Party (a) is duly organized, formed or incorporated, as applicable, validly existing and in good standing under the laws of its jurisdiction of organization, formation or incorporation, as applicable; (b) has the requisite power and authority to own its properties and assets and to carry on its business as now conducted; and |
| (c) | is qualified to do business in each jurisdiction where the nature of the business conducted or the property owned or leased requires such qualification except where the failure to be so qualified to do business would not have a Material Adverse Effect. |
| 7.2 | Authorization and Power. Each Credit Party has the partnership, limited liability company or corporate power, as applicable, and requisite authority to execute, deliver, and perform its respective obligations under this Credit Agreement, the Notes, and the other Loan Documents to be executed by it, its Constituent Documents, and its Subscription Agreements. Each Credit Party is duly authorized to, and has taken all partnership, limited liability company or corporate action, as applicable, necessary to authorize it to execute, deliver, and perform its obligations under this Credit Agreement, the Notes, such other Loan Documents, its Constituent Documents, and the Subscription Agreements, and is duly authorized to perform its obligations under this Credit Agreement, the Notes, such other Loan Documents, its Constituent Documents and the Subscription Agreements. |
| 7.3 | No Conflicts or Consents. None of the execution and delivery of this Credit Agreement, the Notes or the other Loan Documents, the consummation of any of the transactions herein or therein contemplated, or the compliance with the terms and provisions hereof or with the terms and provisions thereof, will contravene or conflict, in any material respect, with any provision of law, statute or regulation to which any Credit Party is subject or any judgment, license, order or permit applicable to any Credit Party or any indenture, mortgage, deed of trust or other agreement or instrument to which any Credit Party is a party or by which any Credit Party may be |
bound, or to which any Credit Party may be subject. No material consent, approval, authorization or order of any court or Governmental Authority, Investor or third party is required in connection with the execution and delivery by any Credit Party of the Loan Documents or to consummate the transactions contemplated hereby or thereby, including its Constituent Documents, except, in each case, for that which has already been waived or obtained.
| 7.4 | Enforceable Obligations. This Credit Agreement, the Notes and the other Loan Documents to which any Credit Party is a party are the legal and binding obligations of any Credit Party, enforceable in accordance with their respective terms, subject to Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law). |
| 7.5 | Priority of Liens. The Collateral Documents create, as security for the Obligations, valid and enforceable and, once any applicable filings have been made, a perfected first priority Lien on all of the Collateral in favor of the Administrative Agent for the benefit of the Secured Parties, subject to no other Liens, except as enforceability may be limited by Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law). Such Liens on the Collateral shall be superior to and prior to the rights of all third parties in such Collateral, and, other than in connection with any future Change in Law or in the applicable Credit Party’s name, identity or structure, or its jurisdiction of organization, formation or incorporation, as the case may be, no further recordings or Filings are or will be required in connection with the creation, perfection or enforcement of such security interests and Liens, other than the filing of continuation statements in accordance with Applicable Law. Each Lien referred to in this Section 7.5 is and shall be the sole and exclusive Lien on the Collateral. |
| 7.6 | Financial Condition. The Credit Parties have delivered to the Administrative Agent the most recently available copies of the financial statements and reports described in Section 8.1 and the related statement of income, in each case (except with respect to any financial statements delivered prior to the Closing Date) certified by a Responsible Officer of such Credit Party to the effect that such financial statements fairly present in all material respects the financial condition of such Credit Party as of the applicable date of delivery (or in the case of a pro forma balance sheet, estimated financial condition based on assumptions that such pro forma balance sheet has been prepared in accordance with GAAP, except as provided therein). For the avoidance of doubt, such representation relating to the financial statements shall be without qualification, exception or any other statement which has the effect of modifying the opinions therein (but in the case of unaudited statements, subject to the absence of footnotes and ordinary year-end adjustments). |
| 7.7 | Full Disclosure. All information heretofore furnished by such Credit Party, in connection with this Credit Agreement, the other Loan Documents or any transaction contemplated hereby is true and correct in all material respects on the date as of which such information is stated or deemed stated. |
| 7.8 | No Default. No event has occurred and is continuing which constitutes an Event of Default or a Potential Default. |
| 7.9 | No Litigation. (a) As of the Closing Date, there are no actions, suits, investigations or legal, equitable, arbitration or administrative proceedings in any court or before any arbitrator |
or Governmental Authority (“Proceedings”) pending or threatened in writing, against any Credit Party, other than any such Proceeding that has been disclosed in writing by such Credit Party to the Administrative Agent, and (b) as of any date after the Closing Date, there are no such Proceedings pending or threatened in writing, against such Credit Party, other than any such Proceeding that would not be reasonably likely to result in a Material Adverse Effect.
| 7.10 | Material Adverse Effect. No circumstances exist or changes to any Credit Party have occurred since the date of the most recent financial statements of such Credit Party delivered to the Administrative Agent which would reasonably be expected to result in a Material Adverse Effect. |
| 7.11 | Taxes. To the extent that failure to do so would reasonably be likely to have a Material Adverse Effect, all Tax returns, information statements and reports required to be filed by any Credit Party in any jurisdiction have been filed and all Taxes (including mortgage recording Taxes), assessments, fees, and other governmental charges upon such Credit Party or upon any of its properties, income or franchises have been paid prior to the time that such Taxes become delinquent. The Borrowers do not have knowledge of any proposed Tax assessment against any Credit Party which would reasonably be expected to result in a Material Adverse Effect. |
| 7.12 | Principal Office; Jurisdiction of Formation. (a) Each of the principal office, chief executive office, and principal place of business of the Credit Parties is correctly listed on Schedule I (or on a revised Schedule I delivered to the Administrative Agent), and each Credit Party has been at such location since its formation; and (b) the jurisdiction of formation of the Credit Parties is correctly listed on Schedule I, and each Credit Party is not organized under the laws of any other jurisdiction. |
| 7.13 | ERISA. Each Borrower and Guarantor satisfies an exception under the Plan Asset Regulations so that its underlying assets do not constitute Plan Assets. The execution, delivery and performance of this Credit Agreement and the other Loan Documents, the enforcement of the Obligations directly against the Investors, and the borrowing and repayment of amounts under this Credit Agreement, do not and will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975(c)(1)(A)-(D) of the Internal Revenue Code. No Credit Party or member of a Credit Party’s Controlled Group has established, maintains, contributes to, or has any obligation to contribute to any Plan. |
| 7.14 | Compliance with Law. Each Credit Party is in compliance with all laws, rules, regulations, orders, and decrees which are applicable to it or its properties, including Environmental Laws and ERISA, except where non-compliance would not be reasonably likely to have a Material Adverse Effect. |
| 7.15 | Environmental Matters. Each Credit Party (a) has not received any notice or other communication or otherwise learned of any Environmental Liability which could individually or in the aggregate be expected to have a Material Adverse Effect arising in connection with: (i) any actual or alleged non-compliance with or violation of any Environmental Requirements by such Credit Party or any permit issued under any Environmental Law to such Credit Party; or (ii) the Release or threatened Release of any Hazardous Material into the environment; and (b) has no actual liability or, threatened liability in connection with the Release |
or threatened Release of any Hazardous Material into the environment or any Environmental Requirements which could individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
| 7.16 | Capital Commitments and Contributions. All Investors are set forth on Exhibit A and incorporated herein by reference (or on a revised Exhibit A delivered to the Administrative Agent in accordance with Sections 8.1(i) or Section 8.18), and the true and correct Capital Commitment of each Investor is set forth on Exhibit A (or on any such revised Exhibit A). No Capital Calls have been delivered to any Investors other than any that have been disclosed in writing to the Administrative Agent. As of the date hereof, the aggregate amount of the Capital Commitments of each Investor is set forth on Exhibit A; and the aggregate Unfunded Capital Commitment that could be subject to a Capital Call is set forth on Exhibit A. |
| 7.17 | Fiscal Year. The fiscal year of each Credit Party is the calendar year. |
| 7.18 | Investor Documents. Each Investor has executed a Subscription Agreement which has been provided to the Administrative Agent. Each Side Letter that has been entered into has been provided to the Administrative Agent. For each Investor, the Operative Documents, its Subscription Agreement (and any related Side Letter), if any, set forth its entire agreement regarding its Capital Commitment. |
| 7.19 | Margin Stock. No Credit Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Loan or Letter of Credit will be used: (a) to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock; (b) to reduce or retire any Indebtedness which was originally incurred to purchase or carry any such Margin Stock; or (c) for any other purpose which, in the case of any one of the foregoing clauses (a) and (b), would result in a violation of Regulation T, U, or X. No Credit Party nor any Person acting on behalf of the Credit Parties has taken or will take any action which might cause any Loan Document to violate Regulation T, U or X or any other regulation of the Board of Governors of the Federal Reserve System or to violate Section 7 of the Securities Exchange Act, in each case as now in effect or as the same may hereafter be in effect. No Loan or Letter of Credit will be secured at any time by, and the Collateral in which any Credit Party has granted to the Administrative Agent, for the benefit of each of the Secured Parties, a security interest and Lien pursuant to the Collateral Documents will not contain at any time any Margin Stock. |
| 7.20 | Investment Company Status. (a) The Initial Borrower is an “investment company”, within the meaning of the Investment Company Act of 1940, as amended, that has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and has elected to be treated, and to comply with the requirements to qualify annually, as a “regulated investment company” within the meaning of the Internal Revenue Code. |
| (b) | The business and other activities of each Borrower and its Subsidiaries, including the making of the Loans and the issuance of the Letters of Credit hereunder, the application of the proceeds and repayment thereof by the Borrowers and the consummation of the transactions contemplated by the Loan Documents do not result in a material violation or breach |
in any respect of the provisions of the Investment Company Act or any rules, regulations or orders issued by the United States SEC thereunder, in each case, that are applicable to each Borrower and its Subsidiaries.
| (c) | Each Borrower is in compliance with all written Investment Policies, except to the extent that the failure to so comply could not reasonably be expected to result in a Material Adverse Effect. |
| 7.21 | No Defenses. Each Credit Party knows of no default or circumstance which with the passage of time and/or giving of notice, could constitute an event of default under its Constituent Documents, any Subscription Agreement, Side Letter or Credit Link Document which would constitute a defense to the obligations of the Investors to make Capital Contributions to any applicable Fund Party, pursuant to a Capital Call in accordance with the Subscription Agreements or the applicable Credit Party’s Constituent Documents, and has no knowledge of any claims of offset or any other claims of the Investors against any Credit Party which would or could diminish or adversely affect the obligations of the Investors to make Capital Contributions and fund Capital Calls in accordance with any Subscription Agreements (and any related Side Letters), the applicable Credit Party’s Constituent Documents or any Credit Link Document. |
| 7.22 | No Withdrawals Without Approval. No Investor is permitted to withdraw its interest in any Fund Party without the prior approval of the Initial Borrower or the applicable General Partner, as applicable. |
| 7.23 | Sanctions. No Credit Party, no Person directly or indirectly controlling a Credit Party, no Person directly or indirectly controlled by a Credit Party or, to any Credit Party’s knowledge, no officer, director or employee of the foregoing, (a) is a Sanctioned Entity, (b) is controlled by or is acting on behalf of a Sanctioned Entity, or (c) is, to any Credit Party’s knowledge, under investigation for an alleged breach of Sanction(s) by a governmental authority that enforces Sanctions. |
| 7.24 | Insider. No Credit Party is an “executive officer,” “director,” or “person who directly or indirectly or acting through or in concert with one or more persons owns, controls, or has the power to vote more than ten percent (10%) of any class of voting securities” (as those terms are defined in 12 U.S.C. §375b or in regulations promulgated pursuant thereto) of any Lender, of a Bank Holding Company of which any Lender is a subsidiary, or of any subsidiary of a Bank Holding Company of which any Lender is a subsidiary, of any bank at which any Lender maintains a correspondent account, or of any bank which maintains a correspondence account with any Lender. |
| 7.25 | Investors. The Borrowing Base Certificate, as it may be updated in writing from time to time by the Borrowers, is true and correct in all material respects. |
| 7.26 | Organizational Structure. The structure of the Credit Parties is as depicted on Schedule III. The Credit Parties have not formed any Qualified Borrowers that are not depicted on Schedule III (or an updated Schedule III in connection with the formation of a Qualified Borrower). |
| 7.27 | No Brokers. None of the Credit Parties or the Fund Advisor has dealt with any broker, investment banker, agent or other Person (except for the Administrative Agent, the Lenders and any Affiliate of the foregoing) who may be entitled to any commission or compensation in connection with the Loan Documents, the Loans or a transaction under or pursuant to this Credit Agreement or the other Loan Documents. |
| 7.28 | Financial Condition. The Fund Parties, taken as a whole, are Solvent. |
| 7.29 | Authorization of the Shares. The issuance of the Shares has been duly authorized by the Fund Parties in accordance with the terms of the applicable Operative Documents and Subscription Agreements and no further notice or other requirements are required in connection therewith (including by any Secured Party issuing a Capital Call). Authorization of the Shares shall not be rescinded without the prior written consent of all Lenders and any rescission of the Shares shall be invalid unless such prior written consent is obtained. |
| 8. | AFFIRMATIVE COVENANTS OF THE CREDIT PARTIES. |
So long as the Lenders have any commitment to lend hereunder or to cause the issuance of any Letters of Credit hereunder, and until payment and performance in full of the Obligations under this Credit Agreement and the other Loan Documents (other than (x) contingent obligations for which no claim has yet been made, (y) any Obligations in respect of any Letters of Credit that have been Cash Collateralized in an amount equal to or greater than the Minimum Collateral Amount and (z) any Obligations in respect of any Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.16(h)), each Credit Party agrees that:
| 8.1 | Financial Statements, Reports and Notices. The Credit Parties shall deliver to the Administrative Agent sufficient copies for each Lender of the following: |
| (i) | Annual Reports. As soon as available, but no later than the earlier of: (x) the date delivered to any Investor or (y) one hundred twenty (120) days after the end of the fiscal year for each of the Initial Borrower and the Guarantors, the audited statement of assets and liabilities and related statements of operations, of changes in net assets and of cash flows of the Initial Borrower and its consolidated subsidiaries and the Guarantors, respectively, as of the end of and for such year, all reported on by a firm of nationally recognized independent certified public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and results of operations of the Initial Borrower and its consolidated subsidiaries and the Guarantors, respectively, on a consolidated basis in accordance with GAAP consistently applied; provided that no financial statements shall be required for any Guarantor for any period ending prior to its joinder as a Guarantor hereunder. |
| (ii) | Quarterly Reports. As soon as available, but no later than the earlier of: (x) the date delivered to any Investor or (y) ninety (90) days after the end |
of each of the first three fiscal quarters of the Initial Borrower and the Guarantors, the unaudited statement of assets and liabilities and related statements of operations, of changes in net assets and of cash flows of the Initial Borrower and its consolidated subsidiaries and the unaudited statement of assets and liabilities and related statements of operations of the Guarantors, in each case, as of the end of and for such fiscal quarter, all certified by a Responsible Officer of the Initial Borrower and the Guarantors, as applicable, as presenting fairly in all material respects the financial condition and results of operations of the Initial Borrower and its consolidated subsidiaries and the Guarantors, respectively, in accordance with GAAP consistently applied, subject to normal year end audit adjustments and the absence of footnotes (other than explanatory footnotes); provided that no financial statements shall be required for any Guarantor for any period ending prior to its joinder as a Guarantor hereunder.
For the avoidance of doubt, the Credit Parties shall deliver financial reports commencing with the fiscal quarter ending September 30, 2019.
| (b) | Compliance Certificate. No later than the date any financial statement is due pursuant to Section 8.1(a), a compliance certificate in the form of Exhibit M (the “Compliance Certificate”), certified by a Responsible Officer of the Fund Borrowers to be true and correct, (i) stating whether any Event of Default or any Potential Default exists; |
(ii) stating whether the Fund Parties are in compliance with the Debt Limitations contained in Section 9.11 and containing the calculations evidencing such compliance; (iii) stating that, to the knowledge of such Responsible Officer (after conducting due inquiry), no Exclusion Event has occurred with respect to any Included Investor or Designated Investor (that has not previously been disclosed to the Administrative Agent in writing) and
(iv) setting forth: (A) a copy of the report provided to the Investors corresponding to such period (which report shall include a schedule of material Investments and a statement of the capital account of each Investor if such period covers the fiscal year end (it being understood that such schedule, including the threshold of “material Investments” may be in form and substance consistent with any such schedules historically delivered by the Investment Manager or related funds)); (B) the aggregate Unfunded Capital Commitments of the Included Investors and Designated Investors; and (C) the calculations for the Available Commitment as of the date of delivery of such Compliance Certificate.
| (c) | Capital Calls. The Borrowers shall notify the Administrative Agent of the issuance of each Capital Call within three (3) Business Days after the making of such Capital Call and shall provide information as to the timing and amount of such Capital Call to the extent available, along with copies of each Capital Call delivered to the Investors. |
| (d) | Notice of Default. Within two (2) Business Day of becoming aware of the existence of any condition or event which constitutes an Event of Default or a Potential Default, the Credit Parties shall furnish to the Administrative Agent a written notice specifying the nature and period of existence thereof and the action which such Credit Party is taking or proposes to take with respect thereto. |
| (e) | Notice of Certain Withdrawals. Promptly, but no later than the Business Day following receipt thereof, copies of any notice of withdrawal or request for excuse or exemption by any Investor pursuant to the applicable Constituent Document, its Subscription Agreement or Side Letter of all or a portion of such Investor’s partnership interest, Subscribed Interest or other equity interest, as applicable. |
| (f) | Investor Events. Promptly upon becoming aware of any of the following events, a written notice to the Administrative Agent if: (i) an Exclusion Event has occurred with respect to any Included Investor or Designated Investor or any other Investor has violated or breached any material term of the applicable Constituent Documents, the Subscription Agreement or any Credit Link Document; provided that the Credit Parties have no duty to monitor any Exclusion Event of the type set forth in clauses (a), (b), (c), (h), (i), (j), (m) or (u) of the definition thereof; or (ii) there has been a change in the name or notice information of any Investor. The Administrative Agent will notify the Credit Parties upon becoming actually aware of any event which would qualify as an Exclusion Event. |
| (g) | Structure Chart. In the event any Credit Party forms a Qualified Borrower, the Credit Parties will deliver an updated Schedule I reflecting the relevant information of such Person and an updated Schedule III depicting the updated fund structure of the Credit Parties. |
| (h) | ERISA Certification. (i) For each Borrower or Guarantor that provided a certificate of a Responsible Officer pursuant to Section 6.1(p)(ii), Section 6.3(l)(ii) or Section 6.4(f)(ii) prior to admitting one or more ERISA Investors which would result in twenty-five percent (25%) of the total value of any class of equity interests in such Credit Party being held by “benefit plan investors” within the meaning of Section 3(42) of ERISA, such Credit Party shall deliver a favorable written opinion of counsel to such Credit Party addressed to the Secured Parties, reasonably acceptable to the Administrative Agent and its counsel, regarding the status of such Credit Party as an Operating Company (or a copy of such opinion addressed to the Investors, reasonably acceptable to the Administrative Agent and its counsel, together with a reliance letter with respect thereto, addressed to the Secured Parties); and (ii) with respect to each Borrower or Guarantor, for so long as there is any ERISA Investor in such Credit Party, such Credit Party shall provide to the Administrative Agent, no later than sixty (60) days after the first day of each Annual Valuation Period in the case of clause (A) below or thirty (30) days after the end of such Credit Party’s fiscal year in the case of clause (B) below, a certificate signed by a Responsible Officer of such Credit Party that (A) such Credit Party has remained and still is an Operating Company or (B) the underlying assets of such Credit Party do not constitute Plan Assets because less than twenty-five percent (25%) of the total value of each class of equity interests in such Credit Party is held by “benefit plan investors” within the meaning of Section 3(42) of ERISA. |
| (i) | Borrowing Base Certificate. The Borrowers will provide an updated Borrowing Base Certificate certified by a Responsible Officer of the Borrowers to be true and correct in all material respects setting forth a calculation of the Available Commitment in reasonable detail at each of the following times: (i) the first (1st) Business Day of each |
