BLACKROCK DIRECT LENDING CORP.,
as Borrower
REVOLVING CREDIT AGREEMENT
SUMITOMO MITSUI BANKING CORPORATION,
as the Administrative Agent, Lead Arranger, Letter of Credit Issuer, and a Lender
June 18, 2021
TABLE OF CONTENTS (Page)
Section 1. DEFINITIONS (1)
1.1 Defined Terms (1)
1.2 Other Definitional Provisions (40)
1.3 Times of Day (40)
1.4 Schedules and Exhibits, Sections (40)
1.5 References to Agreements, Laws, Etc. (40)
1.6 Interest Rates (40)
1.7 Exchange Rates; Currency Equivalents (41)
1.8 Letter of Credit Amounts (41)
Section 2. REVOLVING CREDIT LOANS (41)
2.1 The Commitment (41)
2.2 Revolving Credit Commitment (45)
2.3 Manner of Borrowing (46)
2.4 Minimum Loan Amounts (48)
2.5 Funding (48)
2.6 Interest (49)
2.7 Determination of Rate and Billing (50)
2.8 Addition of Qualified Borrowers and Payment of the Borrower Guaranty (50)
2.9 Use of Proceeds and Borrower Guaranties (51)
2.10 Unused Commitment Fee (51)
2.11 Upfront Fee and Other Fees (52)
2.12 Extension of Maturity Date (52)
2.13 Increase in the Maximum Commitment (52)
2.14 Letters of Credit (54)
2.15 Letter of Credit Fees (58)
2.16 Benchmark Replacement Setting (58)
2.17 Canadian Benchmark Replacement Setting (60)
Section 3. PAYMENT OF OBLIGATIONS (61)
3.1 Revolving Credit Notes (62)
3.2 Payment of Obligations (62)
3.3 Payment of Interest (62)
3.4 Payments on the Obligations (63)
3.5 Voluntary Prepayments (63)
3.6 Reduction or Early Termination of Commitments (64)
3.7 Lending Office (64)
3.8 Joint and Several Liability (64)
Section 4. TAXES; CHANGE IN CIRCUMSTANCES (65)
4.1 Taxes (65)
4.2 Illegality (69)
4.3 Inability to Determine Rates (70)
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4.4 Increased Cost and Capital Adequacy (71)
4.5 Funding Losses (73)
4.6 Requests for Compensation (73)
4.7 Survival (73)
Section 5. SECURITY (74)
5.1 Liens and Security Interest (74)
5.2 Collateral Accounts; Investor Capital Calls (74)
5.3 Lender Offset (77)
5.4 Agreement to Deliver Additional Collateral Documents (78)
5.5 Subordination (78)
Section 6. CONDITIONS PRECEDENT TO LENDING (78)
6.1 Obligations of the Lenders (78)
6.2 Conditions to all Loans (81)
6.3 Conditions to Qualified Borrower Loans (81)
6.4 Addition of Fund Parties (82)
Section 7. REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES (84)
7.1 Organization and Good Standing (84)
7.2 Authorization and Power (84)
7.3 No Conflicts or Consents (84)
7.4 Enforceable Obligations (84)
7.5 Priority of Liens (85)
7.6 Financial Condition (85)
7.7 Full Disclosure (85)
7.8 No Default (85)
7.9 No Litigation (85)
7.10 Material Adverse Effect (85)
7.11 Taxes (86)
7.12 ERISA (86)
7.13 Compliance with Law (86)
7.14 Investor Information; Investor Capital Commitments and Contributions (86)
7.15 Fiscal Year (86)
7.16 Principal Office; Jurisdiction of Formation; Organizational Structure (86)
7.17 Margin Stock (87)
7.18 Investment Company Act (87)
7.19 No Defenses (87)
7.20 No Withdrawals Without Approval (87)
7.21 Anti-Corruption Laws; Anti-Money Laundering Laws; and Sanctions (87)
7.22 Alternative Investment Vehicles and Parallel Funds (88)
7.23 Beneficial Ownership Certification (88)
Section 8. AFFIRMATIVE COVENANTS (88)
8.1 Financial Statements, Reports and Notices (88)
8.2 Transfers by Existing Investors (91)
8.3 Payment of Taxes (92)
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8.4 Maintenance of Existence and Rights (92)
8.5 Other Notices (93)
8.6 Compliance with Loan Documents, Constituent Documents and Fund Documents (93)
8.7 Operations (93)
8.8 Books and Records; Access (93)
8.9 Compliance with Law (93)
8.10 Insurance (94)
8.11 Authorizations and Approvals (94)
8.12 Maintenance of Liens (94)
8.13 Further Assurances (94)
8.14 Maintenance of Separate Existence (94)
8.15 Investor Capital Call (94)
8.16 Collateral Accounts and Permitted Investments (94)
8.17 Covenants of Qualified Borrowers (94)
8.18 Solvency (94)
8.19 Anti-Corruption Laws; Anti-Money Laundering Laws; and Sanctions (94)
8.20 Pre-Executed Capital Call Notices (95)
8.21 Investor Default (95)
Section 9. NEGATIVE COVENANTS (95)
9.1 Mergers, Etc. (95)
9.2 Negative Pledge (95)
9.3 Fiscal Year and Accounting Method (95)
9.4 Constituent Documents and Related Documents (96)
9.5 Admission of Investors; Transfers of Affiliate Interests; Investor Withdrawals; Alternative Investment Vehicles; Parallel Funds (97)
9.6 Capital Commitments (98)
9.7 ERISA Compliance (99)
9.8 Dissolution (99)
9.9 Limitations on Distributions (99)
9.10 Limitations on Indebtedness (100)
9.11 Limitation on Withdrawals (100)
9.12 Transfers by Credit Parties (100)
9.13 Deemed Capital Contributions (100)
9.14 Change of Depository Bank or Securities Intermediary (100)
9.15 Collateral Accounts (100)
Section 10. EVENTS OF DEFAULT (101)
10.1 Events of Default (101)
10.2 Remedies Upon Event of Default (103)
10.3 Additional Default Remedies (104)
10.4 Waivers of Notice, Etc. (106)
10.5 Curing an Event of Default by Investor Capital Call and Duty to Liquidate Portfolio Investments (107)
10.6 Events of Default or Defaults relating to Qualified Borrowers (108)
Section 11. AGENCY PROVISIONS (108)
11.1 Appointment and Authorization of Agents (108)
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11.2 Delegation of Duties (109)
11.3 Exculpatory Provisions (109)
11.4 Reliance on Communications (111)
11.5 Notice of Default (111)
11.6 Non-Reliance on Agents and Other Lenders (111)
11.7 Indemnification (111)
11.8 Agents in Their Individual Capacity (112)
11.9 Successor Agent (112)
11.10 Reliance by the Credit Parties (114)
11.11 Administrative Agent May File Proofs of Claim (114)
Section 12. MISCELLANEOUS (114)
12.1 Amendments (115)
12.2 Sharing of Offsets (116)
12.3 Sharing of Collateral (117)
12.4 Waiver (117)
12.5 Payment of Expenses; Indemnity (117)
12.6 Notice (120)
12.7 Governing Law (122)
12.8 Choice of Forum; Consent to Service of Process and Jurisdiction; Waiver
of Trial by Jury (122)
12.9 Invalid Provisions (123)
12.10 Entirety (123)
12.11 Parties Bound; Assignment (123)
12.12 Lender Removal/Replacement (126)
12.13 Maximum Interest (127)
12.14 Headings (127)
12.15 Survival (127)
12.16 Full Recourse (127)
12.17 Availability of Records; Confidentiality (128)
12.18 USA Patriot Act Notice (129)
12.19 Multiple Counterparts (129)
12.20 Joint and Several Liability (129)
12.21 Acknowledgment and Consent to Bail-In of Affected Financial Institutions (130)
12.22 Judgment Currency (130)
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SCHEDULES
SCHEDULE I: Fund Party Information
SCHEDULE II: Lender Commitments
SCHEDULE III: Responsible Officers
SCHEDULE IV: Schedule of Maximum Commitments for SLS Facilities
SCHEDULE V: Structure Chart
EXHIBITS
EXHIBIT A-1: Schedule of Investors / Form of Borrowing Base Certificate
EXHIBIT A-2: Form of Borrowing Request Borrowing Base Certificate
EXHIBIT B: Form of Note
EXHIBIT C: Form of Borrower Security Agreement
EXHIBIT D: Form of Borrower Pledge of Collateral Account
EXHIBIT E-1: Form of Request for Borrowing
EXHIBIT E-2: Form of Request for Letter of Credit
EXHIBIT F: Form of Rollover / Conversion Notice
EXHIBIT G: Form of Assignment and Acceptance Agreement
EXHIBIT H: Form of Qualified Borrower Promissory Note
EXHIBIT I: Form of Borrower Guaranty
EXHIBIT J: Form of Responsible Officer’s Certificate
EXHIBIT K: Form of Extension Request
EXHIBIT L-1: Form of U.S. Tax Compliance Certificate
EXHIBIT L-2: Form of U.S. Tax Compliance Certificate
EXHIBIT L-3: Form of U.S. Tax Compliance Certificate
EXHIBIT L-4: Form of U.S. Tax Compliance Certificate
EXHIBIT M: Form of Facility Increase Request
EXHIBIT N: Form of Lender Joinder Agreement
EXHIBIT O: Form of Joinder Agreement
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT is dated as of June 18, 2021, by and among BLACKROCK DIRECT LENDING CORP., a Delaware corporation, as borrower (the “Initial Borrower”; the Initial Borrower together with any AIV Borrower or Parallel Fund that joins as a borrower pursuant to Section 6.4, the “Primary Borrowers” and each a “Primary Borrower”; the Primary Borrowers together with any Qualified Borrowers becoming a party hereto pursuant to Section 6.3, in each case, as set forth on Schedule I (or any updated version delivered in accordance with the terms hereof), the “Borrowers” and each, a “Borrower”), and SUMITOMO MITSUI BANKING CORPORATION, (“SMBC”), as the Administrative Agent for the Secured Parties, Letter of Credit Issuer (as hereinafter defined), Lead Arranger and as a Lender, and each of the other Persons from time to time party hereto as Lenders (each capitalized term not defined is defined below).
RECITALS:
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 do hereby agree as follows:
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Sponsor Rating/Responsible Party RatingA-/A3 or higherBBB/Baa2 or higher Minimum Funding RatioNo minimum80%
Notwithstanding the foregoing, an Investor which does not have any Rating shall be deemed to meet the Rating requirements set forth above which are applicable to it, to the extent that the Administrative Agent determines in its sole discretion based upon its internal rating methodology, that such Investor (or such Investor’s Sponsor, Responsible Party or Credit Provider, as applicable) is of a credit quality which is at least equivalent to the Ratings set forth above applicable to it.
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“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
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(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
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Any Canadian Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Canadian Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
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“Canadian Benchmark Replacement Conforming Changes” means, with respect to any Canadian Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Business Day”, the definition of “Interest Period”, the definition of “Alternative Currency Daily Rate”, the definition of “Alternative Currency Term Rate”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Canadian 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 such Canadian 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 and the other Loan Documents).
“Canadian Benchmark Transition Event” means, with respect to any then-current Canadian Benchmark other than CDOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Canadian Benchmark, the regulatory supervisor for the administrator of such Canadian Benchmark, any Governmental Authority with jurisdiction over such administrator for such Canadian Benchmark, or the Bank of Canada, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Canadian Tenors of such Canadian Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Canadian Tenor of such Canadian Benchmark or (b) all Available Canadian Tenors of such Canadian Benchmark are or will no longer be representative of the underlying market and economic reality that such Canadian Benchmark is intended to measure and that representativeness will not be restored.
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Investor Classification | Individual Concentration Limit | Aggregate Concentration Limit |
Initial Investor | None | None |
Included Investors (other than Initial Investor) | 25% | None |
Designated Investors | 10% | 35-50% |
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“Daily Simple RFR” means, for any day (a “Daily Simple RFR Rate Day”), a rate per annum equal to, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to Sterling, the greater of (i) SONIA for the day (such day, a “Daily Simple RFR Determination Day”) that is two (2) Daily Simple RFR Business Days prior to (A) if such Daily Simple RFR Rate Day is a Daily Simple RFR Business Day, such Daily Simple RFR Rate Day or (B) if such Daily Simple RFR Rate Day is not a Daily Simple RFR Business Day, the Daily Simple RFR Business Day immediately preceding such Daily Simple RFR Rate Day, in each case, as such SONIA is published by the SONIA Administrator on the SONIA Administrator’s Website; provided that if by 5:00 p.m. (London time) on the second (2nd) Daily Simple RFR Business Day immediately following any Daily Simple RFR
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Determination Day, SONIA in respect of such Daily Simple RFR Determination Day has not been published on the SONIA Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple RFR has not occurred, then SONIA for such Daily Simple RFR Determination Day will be SONIA as published in respect of the first preceding Daily Simple RFR Business Day for which such SONIA was published on the SONIA Administrator’s Website; provided further that SONIA as determined pursuant to this proviso shall be utilized for purposes of calculation of Daily Simple RFR for no more than three (3) consecutive Daily Simple RFR Rate Days and (ii) the Floor.
“Daily Simple RFR Borrowing” means, as to any Borrowing, the Daily Simple RFR Loans comprising such Borrowing.
“Daily Simple RFR Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which banks are closed for general business in London.
“Daily Simple RFR Determination Day” shall have the meaning assigned to such term in the definition of “Daily Simple RFR”.
“Daily Simple RFR Interest Payment” means, in respect of any interest period in relation to an Daily Simple RFR Loan, the aggregate amount of interest that is, or is scheduled to become, payable under any Loan Document.
“Daily Simple RFR Loan” means a Loan that bears interest at a rate based on Daily Simple RFR.
“Daily Simple RFR Rate Day” shall have the meaning assigned to such term in the definition of “Daily Simple RFR”.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debt Limitations” means the limitations set forth in Section 9.10.
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“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.
“Eurocurrency Interpolated Rate” means, at any time, with respect to any Eurocurrency Rate Borrowing and for any Interest Period, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the EURIBOR Rate for the longest period (for which the EURIBOR Rate is available for Euros) that is shorter than the Interest Period; and (b) the EURIBOR Rate for the shortest period (for which the EURIBOR Rate is available for Euros) that exceeds the Interest Period, in each case, at approximately 11:00 a.m. (Brussels time) two Eurocurrency Banking Days prior to the commencement of such Interest Period; provided that, if any Eurocurrency Interpolated Rate shall be less than the Floor, such rate shall be deemed to be the Floor for the purposes of this Credit Agreement and the other Loan Documents.
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“Investor Consent Letter” means that certain investor letter dated as of the date hereof, executed by PIFSS in favor of the Administrative Agent, as amended, restated, amended and restated, modified or supplemented from time to time.
“Investor Information” is defined in Section 12.18.
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“Related Party” 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.
“Relevant Canadian Governmental Body” means the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada, or any successor thereto.
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“Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto, (iii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, and (iv) with respect to a Benchmark Replacement in respect of Loans denominated in any other Alternative Currency, (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the “Financial Stability Board” or any part thereof.
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“Term SOFR” means,
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provided further that if Term SOFR determined as provided in clause (a) or clause (b) of this definition shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor for the purposes of such calculation.
“Term SOFR Administrator” means CME Group Benchmark Administration (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its discretion).
“Term SOFR Borrowing” means, as to any Borrowing, the Term SOFR Loans comprising such Borrowing.
“Term SOFR Conversion Date” is defined in Section 2.3(h).
“Term SOFR Loan” means a Loan that bears interest at a rate based on Term SOFR.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
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Each such prepayment shall be made in such amount as will put the Borrowers in compliance with this Section 2.1(e) and shall be made promptly on demand or when any Credit Party becomes aware of, or reasonably should have become aware of, such excess, but in any event by the Required Payment Time. Unless otherwise required by law, upon: (x) a change in circumstances such that the circumstances described in clause (i) or (ii) above no longer exist; or (y) the full and final payment of the Obligations (other than contingent Obligations that have not been asserted), the Administrative Agent shall return to the Borrowers any amounts remaining in the applicable account.
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Notwithstanding anything in this Section 2.1(e) to the contrary, in the event a mandatory prepayment has been triggered pursuant to clause (x) or (y) of this Section 2.1(e), no Borrower will withdraw funds from the Collateral Accounts (with respect to amounts that constitute part of the Collateral), unless, after giving effect to such withdrawal, sufficient funds remain on deposit in the Collateral Accounts (less any amounts which do not constitute part of the Collateral) to satisfy the Borrowers’ payment obligation with respect to the related mandatory prepayment.
If any excess calculated pursuant to Section 2.1(e) 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 2.14(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 exceed the Available Commitment; or (B) the full and final payment of the Obligations and the expiration or termination of all Letters of Credit, so long as no Event of Default has occurred and is continuing, the Administrative Agent shall return to the Borrowers any amounts remaining in said Cash Collateral Account.
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For the avoidance of doubt, any Facility Increase will be on the same terms as contained herein with respect to the Credit Facility. On the Facility Increase Effective Date, Schedule I hereof shall be automatically updated to reflect any corresponding increase in any Lender’s Commitment and/or the Commitment of any additional Lender.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or 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.
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then, in each case, the Administrative Agent will promptly so notify the Borrowers and each applicable Lender. Upon notice thereof by the Administrative Agent to the Borrowers, any obligation of the Lenders to make Term SOFR Loans, Daily Simple RFR Loans or Eurocurrency Rate Loans, as applicable, in each such Agreed Currency, and any right of the Borrowers to convert any Loan in each such Agreed Currency (if applicable) to or continue any Loan as a Term SOFR Loan, Daily Simple RFR Loan or a Eurocurrency Rate Loan, as applicable, in each such Agreed Currency, shall be suspended (to the extent of the affected Term SOFR Loans, Daily Simple RFR Loans or Eurocurrency Rate Loans or, in the case of Term SOFR Loans or Eurocurrency Rate Loans, the affected Interest Periods) until the Administrative Agent (with respect to clause (b) or (c), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (A) the Borrowers may revoke any pending request for a borrowing of, conversion to or continuation of Term SOFR Loans, Daily Simple RFR Loans or Eurocurrency Rate Loans in each such affected Currency (to the extent of the affected Term SOFR Loans, Daily Simple RFR Loans or Eurocurrency Rate Loans, as applicable, or, in the case of Term SOFR Loans or Eurocurrency Rate Loans, the affected Interest Periods) or, failing that, (I) in the case of any request for an affected Term SOFR Borrowing, the Borrowers will be deemed to have converted any such request into a request for a Borrowing of or conversion to Alternate Base Rate Loans in the amount specified therein and (II) in the case of any
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request for an affected Daily Simple RFR Borrowing or Eurocurrency Rate Borrowing, then such request shall be ineffective and (B)(I) any outstanding affected Term SOFR Loans will be deemed to have been converted into Alternate Base Rate Loans at the end of the applicable Interest Period and (II) any outstanding affected Loans denominated in an Alternative Currency, at the Borrowers’ election, shall either (i) be converted into Alternate Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or, in the case of Eurocurrency Rate Loans, at the end of the applicable Interest Period or (ii) be prepaid in full immediately or, in the case of Eurocurrency Rate Loans, at the end of the applicable Interest Period; provided that if no election is made by the Borrowers by the date that is the earlier of (x) three Business Days after receipt by the Borrowers of such notice or (y) with respect to a Eurocurrency Rate Loan, the last day of the current Interest Period, the Borrowers shall be deemed to have elected clause (i) above. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 4.5. Subject to Section 2.16, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Alternate Base Rate Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the Administrative Agent revokes such determination.
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 increase the cost to such Lender,
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the Letter of Credit Issuer or such other Recipient of 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 promptly (and in any event within 20 Business Days) pay 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.
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The application by the Secured Parties of such funds shall, unless the Administrative Agent shall agree otherwise in writing, be the same as set forth in Section 3.4. The parties hereto acknowledge that all funds so transferred into the Collateral Accounts shall be the property of the applicable Fund Party subject to the first priority security interest of the Administrative Agent therein (subject only to Permitted Liens).
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To induce the Lenders to make Loans hereunder, each Borrower hereby represents and warrants (each as to itself and, where applicable, as to any other Affiliate thereof not signatory hereto) to the Administrative Agent and the Lenders that:
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So long as any Lender has any commitment to lend hereunder, and until performance and payment in full of all of the Obligations (other than contingent obligations that have not been asserted) under this Credit Agreement and the other Loan Documents, each of the Borrowers and (to the extent specifically referenced below in this Section 8) the General Partners agrees that, unless the Administrative Agent shall otherwise consent in writing based upon the approval of the Administrative Agent and the Required Lenders (unless the approval of the Administrative Agent alone or a different number of the Lenders is expressly permitted below):
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So long as any Lender has any commitment to lend or to cause the issuance of any Letter of Credit hereunder, and until payment and performance in full of all of the Obligations (other than contingent obligations that have not been asserted) under this Credit Agreement and the other Loan Documents, each of the Borrowers agrees that, without the written consent of the Administrative Agent, based upon the approval of the Required Lenders (unless the approval of the Administrative Agent alone or a different number of the Lenders is expressly permitted below):
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“Distribution” means any dividend or distributions (whether or not in cash) on account of any partnership interest, membership interest or other equity interest in a Credit Party, including as a dividend or other distribution and on account of the purchase, redemption, retirement or other acquisition of any such partnership interest, membership interest or other equity interest (it being acknowledged that, subject to Section 5.5 hereof, the Investment Manager and any Affiliates exercising control over any Credit Party, shall be entitled to receive any fees payable to it pursuant to the Constituent Documents). Notwithstanding the foregoing, a Distribution to one or more Feeder Funds or Intermediate Entities shall be permitted.
“Permitted Distributions” mean, without duplication, (a) Distributions required to maintain the status of Borrower as a RIC and (b) Distributions required to avoid federal excise taxes imposed by Section 4982 of the Internal Revenue Code.
For the avoidance of doubt, this Section 9.10 does not restrict the incurrence of Indebtedness of any Subsidiary that is not a Credit Party.
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In connection with the foregoing clauses (a) through (f), it is expressly agreed that:
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Each of the Borrowers and the General Partners to the maximum extent permitted by Applicable Law, hereby irrevocably appoints the Administrative Agent as its attorney-in-fact coupled with an interest and given by way of security to secure the performance of the obligations of the Credit Parties owed herein, with full power of substitution and with full authority in place of such Credit Party, following the occurrence and during the continuation of an Event of Default (but subject to Section 10.5) to take any and all steps in the name of and on behalf of such Borrower or such Credit Party that are necessary or desirable, in the determination of the Administrative Agent, to collect amounts due under the Collateral, including, without limitation, making Investor Capital Calls in respect of the Investor Capital Commitments, exercising any discretion with respect thereto that is afforded to such Borrowers or General Partners under the related Constituent Documents and/or the Subscription Agreements and endorsing any Borrower’s or General Partner’s name on checks and other instruments representing Investor Capital Contributions and taking the other actions described in this Section 10.3. Each of the Borrowers and the General Partners hereby further agrees that it shall, at the direction of the Administrative Agent following the occurrence and during the continuation of an Event of Default (but subject to Section 10.5), take all actions reasonably requested by the Administrative Agent (including, without limitation, issuing Investor Capital Calls and notifying any or all related Investors to make Investor Capital Contributions in respect of all Investor Capital Commitments on the Administrative Agent’s behalf and enforcing the obligations of the Investors to make such Investor Capital Contributions to facilitate the exercise of the Administrative Agent’s remedies hereunder).
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10.6 Events of Default or Defaults relating to Qualified Borrowers. Notwithstanding any provision in this Credit Agreement or any of the other Loan Documents to the contrary, if an Event of Default or Default relating solely to a Qualified Borrower shall occur, upon the payment in full of all Obligations (other than contingent obligations that have not been asserted) of such Qualified Borrower hereunder, (1) such Event of Default or Default shall be deemed to be cured and (2) such Qualified Borrower shall no longer have the ability to borrow hereunder and shall be withdrawn as a Borrower pursuant to Section 2.8(f).
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Secured Party, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent hereunder.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Secured Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Secured Party or to authorize the Administrative Agent to vote in respect of the claim of any Secured Party in any such proceeding.
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The Administrative Agent agrees that it will promptly notify each Lender of any proposed modification, waiver or amendment to any Loan Document, and deliver drafts of such proposed modification, waiver or amendment to such Lenders, prior to the effectiveness of such proposed modification, waiver or amendment; provided that the Administrative Agent providing such notice (other than in order to obtain the necessary consents required above) shall not be a condition to the effectiveness of any such modification, waiver or amendment. Notwithstanding the above: (A) no provisions of Section 11 may be waived, amended or modified without the consent of the Administrative Agent, or, to the extent affected thereby, any other Agent; (B) no provisions of Section 2.14 may be amended or modified without the consent of the Letter of Credit Issuer; and (C) Section 8 and Section 9 specify the requirements for waivers of the Affirmative Covenants and Negative Covenants listed therein, and any amendment to a provision of Section 8 or Section 9 shall require the consent of the Lenders or the Administrative Agent that are specified therein as required for a waiver thereof. Any amendment, waiver or consent not specifically addressed in this Section 12.1 or otherwise shall be subject to the approval of the Administrative Agent and the Required Lenders.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above: (1) each Lender is entitled to vote as such Lender sees fit on any reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersede the unanimous consent provisions set forth herein; (2) the Required Lenders may consent to allow a Fund Party to use cash collateral in the context of a bankruptcy or insolvency proceeding; and (3) the Administrative Agent may, in its sole discretion, agree to the
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modification or waiver of any of the other terms of this Credit Agreement or any other Loan Document or consent to any action or failure to act by any Fund Party, if such modification, waiver, or consent is of an administrative nature.
Notwithstanding anything to the contrary herein, if following the Closing Date, the Administrative Agent and the Borrowers shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of this Credit Agreement or any other Loan Document, then the Administrative Agent and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to this Credit Agreement or any other Loan Document if the same is not reasonably objected to in writing by the Required Lenders within three (3) Business Days following receipt of notice thereof.
If the Administrative Agent shall request the consent of any Lender to any amendment, change, waiver, discharge, termination, consent or exercise of rights covered by this Credit Agreement, and shall not receive such consent or denial thereof in writing within ten (10) Business Days of the making of such request by the Administrative Agent, such Lender shall be deemed to have given its consent to the request.
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provided that such indemnity shall not apply to (x) any such losses, claims, actions, judgments, suits, disbursements, penalties, damages, liabilities or related expenses arising from the fraud, gross negligence, bad faith or willful misconduct by the Administrative Agent or a Lender (or any Affiliate, officer, director, employee, agent or attorney-in-fact thereof) as determined by a court of competent jurisdiction by final and nonappealable judgment; (y) any settlements related to this Credit Agreement or transactions contemplated hereby without the consent of the Borrower (such consent not to be unreasonably withheld or delayed); or (z) disputes among two or more Indemnitees; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, actions, judgments, suits, disbursements, penalties, damages, liabilities or related expenses (x) result from a claim brought by each Borrower or any Subsidiary thereof against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such Subsidiary has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction, (y) is recourse for amounts owing from Investor Capital Commitments that are uncollectible or uncollected due to the bankruptcy, insolvency or financial inability of the Investor to pay shall be excluded from the indemnifications provided for in this Section 12.5 or (z) with respect to Taxes other than any Taxes that represent losses, claims, damages, liabilities and related expenses arising from any non-Tax claim.
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If to a Borrower:
At the address specified with respect thereto on Schedule I hereto
With copies (which shall not be deemed to be notice hereunder) to:
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Milbank LLP
55 Hudson Yards
New York, NY 10001
Attention: Sean Solis
Telephone: (212) 530-5898
Fax: (212) 822-5346
E-mail: ssolis@milbank.com
If to a Qualified Borrower:
At the address specified in its Qualified Borrower Promissory Note
With copies (which shall not be deemed to be notice hereunder) to:
Milbank LLP
55 Hudson Yards
New York, NY 10001
Attention: Sean Solis
Telephone: (212) 530-5898
Fax: (212) 822-5346
E-mail: ssolis@milbank.com
If to SMBC as Administrative Agent:
Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, New York 10172
Attention: Andrew Gerrity
Email: andrew_gerrity@smbcgroup.com
Telephone: (212) 353-7111
If to SMBC as Lender:
Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, New York 10172
Attention: Andrew Gerrity
Email: andrew_gerrity@smbcgroup.com
Telephone: (212) 353-7111
If to SMBC as Letter of Credit Issuer:
Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, New York 10172
Attention: Andrew Gerrity
Email: andrew_gerrity@smbcgroup.com
Telephone: (212) 353-7111
With a copy to the Administrative Agent, at the address and numbers set forth above.
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With copies (which shall not be deemed to be notice hereunder) to:
Cadwalader, Wickersham & Taft LLP
650 South Tryon Street
Charlotte, North Carolina 28202
Attention: Tim Hicks
Telephone: (704) 348-5191
Facsimile: (704) 348-5200
Email: tim.hicks@cwt.com
If to the Lenders:
At the address and numbers set forth below the signature of such Lender on the signature page hereof or on the Assignment and Acceptance Agreement of such Lender.
Any party may change its address for purposes of this Credit Agreement by giving notice of such change to the other parties pursuant to this Section 12.6. With respect to any notice received by the Administrative Agent from any Borrower not otherwise addressed herein, the Administrative Agent shall notify the Lenders promptly of the receipt of such notice, and shall provide copies thereof to the Lenders.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
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The provisions of this Section 12.17 shall survive termination of this Credit Agreement, and shall remain operative and in full force and effect regardless of the repayment of the Obligations for a period of one (1) year from the termination of this Credit Agreement.
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REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed as of the day and year first above written.
BORROWER:
BLACKROCK DIRECT LENDING CORP.
By: /s/ Erik L. Cuellar__________
Name: Erik Cuellar
Title: Chief Financial Officer
Revolving Credit Agreement – BlackRock Direct Lending Corp.
ADMINISTRATIVE AGENT, LETTER OF CREDIT ISSUER AND LENDER:
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent, Letter of Credit Issuer and a Lender
By: /s/ Valery Fomenko_______________________
Name: Valery Fomenko
Title: Director
Revolving Credit Agreement – BlackRock Direct Lending Corp.
SUMITOMO MITSUI BANKING CORPORATION,
as Lender
By: /s/ Valery Fomenko_______________________
Name: Valery Fomenko
Title: Director
Revolving Credit Agreement – BlackRock Direct Lending Corp.
SCHEDULE I
Fund Party Information
Name | Type of Fund | Jurisdiction | Partnership | Management Agreement | Investor Subscription Agreement | Collateral Account Information |
BlackRock Direct Lending Corp. | Borrower | Delaware | Certificate of Incorporation dated October 12, 2020. | N/A | Subscription Agreement, dated as of November 2020 (as modified by that certain Supplement to Subscription Agreement dated as of December 11, 2020), by and among the Public Institution for Social Security of Kuwait and BlackRock Direct Lending Corp.
| Bank Name: State Street Bank and Trust Company
|
SCH. I-1
Notice to a Borrower or a General Partner:
c/o BlackRock Capital Investment Advisors, LLC
2951 28th Street, Suite 1000
Santa Monica, CA 90405
Attention: Nik Singhal
Erik Cuellar
John Doyle
Laurence Paredes
Diana Huffman
Email: nik.singhal@BlackRock.com
erik.cuellar@BlackRock.com
john.doyle@BlackRock.com
laurence.paredes@BlackRock.com
diana.huffman@BlackRock.com
with a copy (which shall not be deemed to be notice hereunder) to:
c/o BlackRock, Inc.
Office of the General Counsel
50 Hudson Yards
New York, NY 10001
Attention: Jack Schinasi
Email: legaltransactions@blackrock.com
SCH. I-2
SCHEDULE II
Lender | Commitment |
SUMITOMO MITSUI BANKING CORPORATION | $ 40,000,000 |
SCH. II-1
SCHEDULE III
Responsible Officers
1. Nik Singhal
2. Erik Cuellar
3. John Doyle
4. Laurence Paredes
SCH. III-1
SCHEDULE IV
Schedule of Maximum Commitments
Lender | Aggregate |
SUMITOMO MITSUI BANKING CORPORATION | $ 40,000,000.00 |
Schedule IV