Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all applicable non‑Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the applicable Lenders pro rata in accordance with the applicable Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Fees. No Lender shall be entitled to receive any Unused Fees for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(b) Defaulting Lender Cure. If the Borrower Representative and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with their applicable Commitments, whereupon, such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to non‑Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c) Defaulting Lender Replacement. If any Lender becomes and continues to be a Defaulting Lender, if there is no Event of Default, the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 hereof), all of its interests, rights and obligations under this Agreement and the related Finance Documents to an Eligible Assignee who agrees to assume such obligations; provided that 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 Finance Documents from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the applicable Borrower (in the case of all other amounts).
Section 2.17. Making or Maintaining Term Rate Loans.
(a) Inability to Determine Applicable Interest Rate. If the Administrative Agent or any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Loans, that adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of “Term Rate”, the Administrative Agent shall on such date give notice to the Borrower Representative and each Lender of such determination, whereupon (i) such Loans shall bear interest at the applicable Daily SOFR plus the Margin per annum until such time as the Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist or a Benchmark Replacement has been selected (unless such circumstances also exist in respect of “Daily SOFR”, in which case such Loans shall bear interest at the applicable Base Rate plus the Margin per annum until such time as the Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist or a Benchmark Replacement has been selected), and (ii) any Loan Notice given by the Borrowers with respect to such Loans shall be deemed to be rescinded by such Borrowers or, at the election of such Borrowers, a request that such Loans be made bearing interest based on Daily SOFR (or if applicable, the Base Rate) instead of such Term Rate.
(b) Illegality or Impracticability of Term Rate Loans. If on any date (i) any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, converting to or continuation of its Loans at a Term Rate has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) the Administrative Agent is advised in writing by the Required Lenders (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, converting to or continuation of their Loans at a Term Rate has become impracticable, as a result of contingencies occurring after the date hereof, then, and in any such event, such Lenders (or in the case of the preceding clause (i), such Lender) shall be an “Affected Lender” and such Affected Lender shall on that day give notice (by e‑mail or by telephone confirmed in writing) to the Borrower Representative and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each other Lender). If the Administrative Agent receives a notice from (x) any Lender pursuant to clause (i) of the preceding sentence or (y) a notice from the Lenders constituting Required Lenders pursuant to clause (ii) of the preceding sentence, then (A) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) to make additional Loans at a Term Rate shall be suspended until such time as such circumstances cease to exist (at which time such notice shall be withdrawn by each Affected Lender); (B) to the extent such determination by the Affected Lender relates to a Loan at a Term Rate then being requested by the Borrowers pursuant to a Loan Notice, such Loan Notice shall be deemed to be rescinded by such Borrowers (or, at the election of such Borrowers, be deemed to be a request that such Loan be made bearing interest based on Daily SOFR or the applicable Base Rate); (C) the Lenders’ (or in the case of any notice pursuant to clause (i) of the preceding sentence, such
Lender’s) obligations to maintain their respective outstanding Loans that bear interest based on the applicable Term Rate (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans and when required by law; and (D) the Affected Loans shall automatically convert into Loans that bear interest at Daily SOFR plus the Margin per annum on the date of such termination (or if Daily SOFR is unavailable, the applicable Base Rate plus the Margin per annum on the date of such termination). Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Loan then being requested by the Borrowers pursuant to a Loan Notice, such Borrowers shall have the option, subject to the provisions of this Section 2.17, to rescind such Loan Notice as to all Lenders by giving written or telephonic notice (promptly confirmed by delivery of written notice thereof) to the Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission the Administrative Agent shall promptly transmit to each other Lender).
Section 2.18. Effect of Benchmark Transition Event. Notwithstanding anything to the contrary herein or in any other Finance Document:
(a) Benchmark Replacement. If a Benchmark Transition Event occurs with respect to any then‑current Benchmark and a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement”, then such Benchmark Replacement will replace such then‑current Benchmark for all purposes hereunder and under each other Finance Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided by the Administrative Agent to the Lenders and the Borrowers without any amendment to, or further action or consent of any other party to, this Agreement or any other Finance Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(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 Finance Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Finance Document (other than as contemplated in the definition of “Benchmark Replacement Conforming Changes”).
(c) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly (and in any event within five (5) Business Days) notify the Borrowers and the Lenders of (A) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes, and (D) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (d) below. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, the Borrowers or any Lender (or group of Lenders) pursuant to this Section 2.18(c), 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 or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent
from any other party to this Agreement or any other Finance Document, except, in each case, as expressly required pursuant to this Section 2.18(c).
(d) Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if a then‑current Benchmark is a term rate (including Term SOFR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non‑representative for such Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for such Benchmark (including Benchmark Replacement) settings.
Section 2.19. Non‑Consenting Lenders. The Borrowers may, at their sole expense and effort, upon notice by the Borrowers to such Lender and the Administrative Agent, require any Non‑Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 hereof) all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that the assignee shall approve the proposed amendment, modification, waiver, termination or consent. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
Section 2.20. Stated Maturity Date.
(a) The Borrowers may request to extend, at their option, the Stated Maturity Date then in effect. The extension shall be subject to satisfaction of the following conditions precedent:
(i) no Event of Default or Default shall have occurred and be continuing on the date on which notice is given or on the date any such extension is granted;
(ii) the Borrower Representative shall have delivered an Extension Request with respect to the then effective Stated Maturity Date to the Administrative Agent not less than ten (10) Business Days (or such shorter period as agreed to by the Administrative Agent) prior to the then effective Stated Maturity Date (which shall be promptly forwarded by the Administrative Agent to the Lenders);
(iii) the representations and warranties of the Borrowers contained in Article 4 and in any other Finance Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such extension to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically 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 earlier date; and
(iv) on or prior to the then current Stated Maturity Date, each extending Lender or Lenders shall have agreed to extend the Stated Maturity Date for such additional term, each in its sole discretion, and the Administrative Agent shall have agreed to extend the Stated Maturity Date for such additional term (which consent shall not be unreasonably withheld or delayed).
(b) Lenders may in their sole discretion consent to such extension. To the extent any Lender does not consent to extend its Commitment under this Section 2.20(b), the Obligations outstanding to such Lender as of the then effective Stated Maturity Date shall be due and payable to such Lender on such date; provided that if any other Lender agrees to extend its Commitment with respect to all or any portion of any non‑extending Lender’s Commitment, such non‑extending Lender shall be required to assign on the Stated Maturity Date all or such applicable portion of its Commitment to one or more extending Lenders (or new Lenders) who have consented to increase their Commitments and have agreed to such extended Stated Maturity Date. Upon the payment of amounts due under the prior sentence to the non‑extending Lender (and, if requested by the Administrative Agent and the Borrower Representative, such aforementioned assignment), such non‑extending Lender shall cease to be a Lender hereunder. For the avoidance of doubt, no opinions shall be required in connection with an extension pursuant to this Section 2.20.
Section 2.21. Additional Borrowers. The Borrowers may elect, at their option, to join any Eligible Borrower as an “Additional Borrower” hereunder by delivery of (a) a Borrower Joinder Agreement, (b) such corporate or other action, incumbency of officers, and other documents as is substantially consistent with those delivered by the Borrowers pursuant to Section 3.01(b), (e) and (g) on the Closing Date (in form and substance reasonably acceptable to the Administrative Agent) and (c) an opinion of counsel to such Additional Borrower reasonably acceptable to the Administrative Agent; provided that no such opinion shall be required to the extent that (i) an opinion acceptable to the Administrative Agent with respect to a Borrower has been delivered for such Borrower or another Borrower formed in the same jurisdiction, (ii) no change in law has occurred with respect to such jurisdiction that would alter the analysis of such prior opinion and (iii) if applicable, the Constitutional Documents of such Borrower is substantially similar to the Constitutional Documents of such other Borrower, in each case for clauses (ii) and (iii) above, as determined by the Administrative Agent, in its reasonable discretion; provided further that no Additional Borrower may be formed in a jurisdiction where any Lender is prohibited from lending, or is not otherwise authorized to lend.
ARTICLE 3
CONDITIONS TO LOANS
Section 3.01. Closing Date Conditions. The obligation of each Lender to enter into this Agreement on the Closing Date shall be subject to satisfaction or waiver in accordance with Section 10.05 of the following conditions on or before the Closing Date:
(a) Finance Documents. The Administrative Agent shall have received executed counterparts of each Finance Document, duly executed and delivered by each Borrower and each other person party thereto.
(b) Constitutional Documents; Incumbency. The Administrative Agent shall have received, in respect of each Borrower, (i) copies of each Constitutional Document certified as of the Closing Date or a recent date prior thereto by a Responsible Officer of such Borrower; (ii) signature and incumbency certificates of the Responsible Officers of such Borrower; (iii) resolutions of the authorizing body of such Borrower approving and authorizing the execution, delivery and performance of this Agreement and the other Finance Documents to which such Borrower is a party or by which it or its assets may be bound as of the Closing Date and evidencing the identity, authority and capacity of such Responsible Officers executing the incumbency certificate in clause (ii) above to act as a Responsible Officer on behalf of such Borrower, certified as of the Closing Date by a Responsible Officer of such Borrower as being in full force and effect without modification or amendment; (iv) in respect of a Borrower incorporated, organized or formed in the Cayman Islands (as applicable), copies of the register of directors and officers and register of mortgages and charges of such Borrower certified as of the Closing Date by a Responsible Officer of the Borrower and (v) if applicable, a good standing certificate (or equivalent) from the applicable Governmental Authority of each such Borrower’s jurisdiction of incorporation, organization or formation, each dated on the Closing Date or a recent date prior thereto.
(c) Governmental Authorizations and Consents. If applicable, the Borrowers shall have obtained all Governmental Authorizations and all consents of other persons, in each case that are necessary in connection with the transactions contemplated by the Finance Documents and each of the foregoing shall be in full force and effect. If applicable, all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Finance Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
(d) Security Documents. The Administrative Agent shall have received executed counterparts of each Security Document, duly executed and delivered by each Borrower party thereto and each other person party thereto;
(e) Collateral Matters.
(i) The Administrative Agent shall have received evidence of the establishment of each of the Collateral Accounts, each of which shall be subject to an Account Control Agreement.
(ii) In connection with the creation in favor of the Administrative Agent, for the benefit of Finance Parties, of a valid, perfected security interest in the personal property Collateral, each Borrower shall have delivered to the Administrative Agent (A) UCC financing statements (or their equivalent) satisfactory to the Administrative Agent with respect to the Collateral together with written evidence satisfactory to the Administrative Agent that the same are ready for filing in the appropriate public filing office(s), in the Administrative Agent’s reasonable discretion and (B) PPSA financing statements (or their equivalent)
satisfactory to the Administrative Agent with respect to the Collateral together with written evidence satisfactory to the Administrative Agent that the same have been filed in the appropriate public filing office(s), in the Administrative Agent’s reasonable discretion, in each case, to perfect the Finance Parties’ first priority security interest in the Collateral (subject to Permitted Liens).
(f) Opinions of Counsel. The Agents and Lenders and their respective counsel shall have received executed copies of:
(i) a favorable opinion dated as of the Closing Date of Simpson Thacher & Bartlett, counsel to the Borrowers, customary for a transaction of this type and otherwise substantially in a form reasonably acceptable to the Administrative Agent;
(ii) and a favorable opinion dated as of the Closing Date of Stikeman Elliot LLP, special Ontario counsel to the Borrowers formed, registered or incorporated in Ontario, customary for a transaction of this type and otherwise substantially in a form reasonably acceptable to the Administrative Agent; and
(iii) a favorable opinion dated as of the Closing Date of Maples and Calder (Cayman) LLP, Cayman Islands counsel to the Borrowers formed, registered or incorporated in the Cayman Islands, customary for a transaction of this type and otherwise substantially in a form reasonably acceptable to the Administrative Agent.
(g) Patriot Act; “Know Your Customer” Information and Documents. At least three (3) days prior to the Closing Date or such shorter period of time as agreed by the Administrative Agent in writing, the Lenders and the Agents shall have received all documentation and other information required by bank regulatory authorities under applicable “know‑your‑customer” and anti‑money laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
(h) Closing Certificate. The Administrative Agent’s receipt of a certificate from a Responsible Officer of each Borrower covering the matters specified in Section 3.02(c)‑(f) in form satisfactory to the Administrative Agent, in its reasonable discretion.
(i) Fees, Costs and Expenses. The Borrowers shall have paid to the Administrative Agent and the Lenders the upfront fees payable pursuant to the Fee Letter executed on or prior to the Closing Date together with any fees and other amounts due and payable on or before the Closing Date (including all expenses payable pursuant to Section 10.02), including the reasonable fees and disbursements of Mayer Brown LLP, as New York counsel to the Administrative Agent and the to the extent such invoices are received not less than two (2) Business Days prior to the Closing Date.
Section 3.02. Conditions to Borrowing. The obligation of each Lender to make any Loan on any Funding Date, including the Closing Date, requested pursuant to the applicable Loan Notice, is subject to the satisfaction, or waiver in accordance with Section 10.05 of the following conditions precedent:
(a) Loan Notice. The Administrative Agent shall have received a Loan Notice duly executed and delivered by the Borrower Representative in accordance with Section 2.01(b).
(b) Total Outstandings and Commitments. After giving effect to the making of such Loans, the Outstanding Amount of any Lender’s Loans shall not exceed its Commitment.
(c) Representations and Warranties. All of the representations and warranties of the Borrowers contained in Article 4 and in any other Finance Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of that Funding Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically 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 earlier date.
(d) No Defaults. As of such Funding Date, no event shall have occurred and be continuing or would result from the making of the applicable Loans that would constitute an Event of Default or Default.
(e) Maintenance LTV. The LTV shall be less than or equal to the Maintenance LTV on a pro forma basis taking into account any borrowings, prepayments and/or repayments of the Facility made or to be made on or prior to the relevant Funding Date and taking into account any use of proceeds of the proposed Loans.
(f) Change of Control. No Change of Control shall have occurred and be continuing.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this Agreement and to induce the Lenders to make the Loans to be made hereunder, each Borrower represents and warrants to each Agent and Lender, as of the Closing Date and on each other Funding Date:
Section 4.01. Status.
(a) Each of the Borrowers are each duly incorporated, organized, formed or registered, as applicable, and validly existing and in good standing, if applicable, under the laws of its respective jurisdiction of incorporation, organization, formation, registration or establishment, as the case may be, and is qualified to do business in every jurisdiction where the nature of the business conducted or the property owned or leased require such qualification.
(b) Each of the Borrowers have the power to own its property and assets and carry on its business as it is being conducted and is in compliance with all laws and regulations applicable to its business except, except in each case, where failure to do so would not result nor would reasonably be expected to result in a Material Adverse Effect.
Section 4.02. Binding obligations. Each Finance Document has been duly executed and delivered by each Borrower party thereto, and the obligations expressed to
be assumed by each such Borrower in each Finance Document to which it is a party are legal, valid, binding and enforceable obligations, enforceable against each such Borrower in accordance with its terms, except as may be limited by Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law).
Section 4.03. Non‑conflict with other obligations.
(a) None of the execution, delivery and performance by any Borrower of its obligations under, the Finance Documents to which it is a party will conflict in any material respect with any Applicable Law or any material judgement, license, order or permit applicable to such party. No material consent, approval, authorization or order of any court or Governmental Authority or third party is required in connection with the execution and delivery by any Borrower of any Finance Document or the execution, delivery or performance thereof other than those that have been obtained and are in full force and effect.
(b) The entry into and performance by each Borrower of, and the transactions contemplated by the Finance Document to which it is a party do not conflict with:
(i) such Borrower’s Constitutional Documents; or
(ii) any agreement or instrument binding upon it or any of its assets except for any conflict that would not reasonably be expected to have a Material Adverse Effect.
Section 4.04. Power and Authority. Each Borrower has the power and authority to execute, perform and deliver, and has taken (or, in the case of any document to be entered into after the date of this Agreement, will take prior to entry into the relevant document) all necessary action to authorize its execution, performance and delivery of, the Finance Documents and the transactions contemplated by those Finance Documents.
Section 4.05. No Misleading Information.
(a) As of the Closing Date, there is no fact and there are no changes to any Borrower that has not been disclosed to the Administrative Agent in writing which could reasonably be expected to have a Material Adverse Effect. No information (other than (i) projections, budgets, estimates and other forward‑looking information and (ii) information of a general economic or industry data) heretofore furnished by or on behalf of such Borrower in connection with this Agreement, the other Finance Documents or any transaction contemplated hereby contains any untrue statement of material fact or omits to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they are made that could reasonably be expected to have a Material Adverse Effect. All of the projections, budgets, estimates and other forward looking information heretofore furnished by or on behalf of such Borrower or in connection with this Agreement, the other Finance Documents or any transactions contemplated hereby have been prepared in good faith based on assumptions that such Borrower believed to be reasonable at the time made and at the time the related projections, budgets and estimates were made available to the Administrative Agent; provided that with respect to projected financial information, other forward looking information relating to third parties and information of a general economic or general industry nature, the Borrowers represent only that
such information was prepared in good faith based upon assumptions believed to be reasonable at the time of the preparation thereof, and the Borrowers make no representation or warranty with respect to information of a general economic or general industry nature (it being understood that projections are subject to significant and inherent uncertainties and contingencies which may be outside of the Borrowers’ control and that no assurance can be given that projections will be realized, and are therefore not to be viewed as fact, and that actual results for the periods covered by projections may differ from the projected results set forth in such projections and that such differences may be material).
(b) As of the Closing Date, the information included in each Beneficial Ownership Certification, if applicable, is true and correct in all respects to the best of the applicable Responsible Officer’s knowledge.
Section 4.06. Reports and Financial Statements.
(a) The most recent Compliance Certificate, delivered to the Administrative Agent (if any) pursuant to Section 6.02 is accurate and not misleading in any material respect as of the date of such Compliance Certificate.
(b) The most recent financial statements (if any) delivered to the Administrative Agent pursuant to Section 6.01 fairly present in all material respects the financial position of the relevant entity in respect of the period to which they relate thereof and have been prepared in accordance with the Accounting Principles consistently applied (other than, in the case of unaudited financial statements, the omission of footnote disclosures and subject to normal year‑end adjustments).
(c) The most recent Schedule 4.17 delivered to the Administrative Agent (if any) is accurate and not misleading in any material respect as of the date of such delivery.
Section 4.07. No Proceedings Pending or Threatened. Except, as set forth in any report publicly disclosed prior to the Closing Date, (i) there are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority (a “Proceeding”) now pending against or, to the knowledge of any Responsible Officer of any Borrower, threatened in writing against or affecting such Borrower as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect and (ii) there are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority now pending against or, to the knowledge of any Responsible Officer of any Borrower, threatened in writing against or affecting the that directly involve this Agreement or the transactions contemplated by this Agreement as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than any action brought against a Defaulting Lender).
Section 4.08. Payment of Taxes. Except as otherwise permitted hereunder, to the extent that failure to do so would have or would reasonably be expected to have a
Material Adverse Effect, all Tax returns and reports required to be filed by the Borrowers or covering the Borrowers have been timely filed, and all Taxes that are due and payable and all assessments, fees and other governmental charges upon the Borrowers and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable. There is no proposed Tax assessment against any of the Borrowers that is not being actively contested by such Borrowers in good faith and by appropriate proceedings and for which adequate reserves are being maintained in accordance with the Accounting Principles, except assessments that would not have or would not reasonably be expected to have a Material Adverse Effect.
Section 4.09. No Breach of Laws. Each Borrower is in compliance with all Applicable Laws, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 4.10. Liens. Schedule 4.10 is a complete and correct list of each Lien (if any) securing Financial Indebtedness of each Borrower outstanding on the Closing Date (other than Financial Indebtedness hereunder or under any other Finance Document) covering any property directly held by such Borrower, and the aggregate principal amount of such Financial Indebtedness secured (or that may be secured) by each such Lien and the property covered by each such Lien as of the Closing Date is correctly described in Schedule 4.10.
Section 4.11. Good Title to Assets. Each Borrower has good title to, or valid leasehold interests in, all its real and personal property material to its business, taken as a whole, except for minor defects in title that do not interfere with its ability to conduct its business, taken as a whole, as currently conducted or to utilize such properties for their intended purposes.
Section 4.12. Sanctions; Anti‑Corruption; PATRIOT Act. Neither the Borrowers nor the directors or officers of the Borrowers or, to the knowledge of any Borrower, any of their respective employees or agents acting on behalf of such Borrower is subject to any sanctions or economic embargoes administered or enforced by the U.S. Department of State or the U.S. Department of Treasury (including the Office of Foreign Assets Control), the Canadian government or any other applicable sanctions authority (including the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom and the Hong Kong Monetary Authority) (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Laws”). Each Borrower and, to the knowledge of each Borrower, its respective directors, officers, employees and agents acting on behalf of such Borrower is in compliance, in all material respects, with (a) all Sanctions Laws, (b) the United States Foreign Corrupt Practices Act of 1977, the Criminal Code (Canada), the Corruption of Foreign Public Officials Act (Canada), and any other applicable anti‑bribery or anti‑corruption laws, rules, regulations and orders (collectively, “Anti‑Corruption Laws”), (c) the PATRIOT Act, (d) the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and (e) any other applicable terrorism and money laundering laws, rules, regulations and orders.
Each Borrower has instituted and maintained, or has been subject to, policies and procedures reasonably designed to achieve compliance with such laws.
Section 4.13. Principal Office; Jurisdiction. (a) The chief executive office, and principal place of business of each Borrower is set forth on Schedule 4.13 hereto, as the same may be updated by such Borrower from time to time, and each Borrower has been at such location since its organization, formation, registration or incorporation, as applicable, or such other location(s) as disclosed in writing to the Administrative Agent and (b) the jurisdiction of organization, formation, registration or incorporation, as applicable, of each Borrower is as set forth on Schedule 4.13 hereto, as the same may be updated by such Borrower from time to time.
Section 4.14. Investment Company Act; Governmental Regulations. No Borrower is required to be registered as an “investment company”, or is a company controlled by a company, within the meaning of the Investment Company Act of 1940, as amended.
Section 4.15. Federal Reserve Regulations; Exchange Act. Neither the execution and delivery by the Borrowers of the Finance Documents nor the consummation of the transactions contemplated therein, nor performance of and compliance with the terms and provisions thereof by the Borrowers will or will cause any Lender to violate any Margin Regulations or any other regulation of the Board of Governors of the Federal Reserve System applicable to Margin Stock. The Borrowers are not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock. The use of proceeds of any Loans comply with and will comply with the Margin Regulations.
Section 4.16. Employee Benefit Plans; Canadian Defined Benefit Plans. The Borrowers do not maintain or contribute to, or have any obligation or liability (contingent or otherwise) to contribute to, a Pension Plan or a Multiemployer Plan, including in respect of an ERISA Affiliate, in each case except as would not reasonably be expected to have a Material Adverse Effect, and no ERISA Event has occurred that would reasonably be expected to have a Material Adverse Effect. The assets of each Borrower do not constitute “plan assets” of any “benefit plan investor” (within the meaning of Section 3(42) of ERISA) for purposes of the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code. No Borrower maintains, sponsors, contributes to, participates or otherwise has any liability, contingent or otherwise with respect to any Canadian Defined Benefit Plan.
Section 4.17. Ownership of Assets.
(a) As of the Closing Date, Schedule 4.17 (i) contains a complete listing of all Assets owned by each Borrower (directly or indirectly through a Holding Vehicle) on such date, and identifies each such Asset as either an Eligible Asset or an Excluded Asset (it being agreed and understood that, notwithstanding any designation on such Schedule 4.17, only those Assets that actually constitute “Eligible Assets” as defined herein shall be eligible for inclusion in the calculation of Net Asset Value or any ratio or calculation based thereon); (ii) sets forth the most recent calculation of the Net Asset Value of such Asset; (iii) sets forth the initial cost or purchase
price in respect of such Asset; (iv) specifies the applicable GICS Industry Group Classification of such Asset; and (v) identifies the location of each such Asset.
(b) Each Borrower has good and marketable title to the Assets which it owns (directly or indirectly through a Holding Vehicle), except for any Liens not prohibited hereunder.
Section 4.18. Solvency. Each Borrower is Solvent.
ARTICLE 5
COLLATERAL ACCOUNTS
Section 5.01. Accounts; Use of Accounts. The Borrowers shall require (subject to the terms and provisions of the Security Documents) the Asset Proceeds and any other Collateral to be paid into or deposited into the Collateral Accounts and to no other deposit or securities account. Should any Borrower receive any such cash Asset Proceeds directly or otherwise not deposited into its Collateral Account, it shall promptly deposit (but in any event, within three (3) Business Days) such sums into its Collateral Account; provided that any amounts received during a Cash Control Event shall be paid into the account immediately upon receipt, but in any event not more than two (2) Business Days after receipt thereof. In addition thereto, at any time that there are Obligations outstanding, during the continuance of a Cash Control Event, each Borrower shall cause any Holding Vehicle Controlled by such Borrower to deposit any Asset Proceeds received thereby to be distributed to its equity holder and deposited into the Collateral Accounts as promptly as possible (and, subject to any operational or administrative limitations, within no more than two (2) Business Days and, to the extent to draft any operational or administrative limitations, within no more than four (4) Business Days), and solely to the extent that such Borrower does not directly or indirectly Control such Holding Vehicle, shall not take any action to prevent, impede or impair any Asset Proceeds from being paid to such Borrower; provided that such Holding Vehicle shall not be required to distribute (i) any amounts it is reasonably required to retain to be utilized to pay for out‑of‑pocket expenses related to the ordinary course business operations of such entity, (ii) amounts necessary to pay Asset Obligations under the applicable Asset Documents in respect of Assets (whether held directly or indirectly through a Holding Vehicle) solely to the extent such payment obligations arose prior to the date of such Cash Control Event, or (iii) any amount that any Borrower (or the relevant Holding Vehicle) has determined, in its commercially reasonable business judgment, that if paid, would reasonably be expected (x) to result in such entity becoming insolvent or bankrupt under any applicable Debtor Relief Law, (y) to violate Applicable Law or (z) to conflict with the fiduciary duties to such Holding Vehicle.
(a) The Borrowers shall be permitted to withdraw any funds from any Collateral Account (or in the case of a securities account, other assets contained therein) at any time or from time to time (i) to pay Tax Distributions or to any payments under the Agreement, (ii) so long as the LTV was less than or equal to the Cash Sweep LTV on the date of its commitment, to contribute in respect of any Asset Obligations permitted by Section 7.04 and/or (iii) so long as no Cash Control Event has occurred or is continuing or would result therefrom, for any other purpose permitted under Section 2.04. Any withdrawal from a Collateral Account by
any Borrower (excluding any withdrawal resulting in a transfer of funds to another Collateral Account) shall be deemed a representation and warranty by such Borrower that the condition set forth in the foregoing sentence has been satisfied.
(b) The Borrowers shall not open any deposit or securities account which holds proceeds attributable to Asset Proceeds that is not a Collateral Account without prior written notification to the Administrative Agent. In connection with any replacement of a Collateral Account, the Administrative Agent is hereby authorized to release the Liens on such replaced account upon the execution of Security Documents relating to such replacement account.
(c) If at any time the Depository at which a Collateral Account is held shall cease to be an Eligible Institution, the Borrowers shall be required to (i) open a new Collateral Account(s) at an Eligible Institution acceptable to the Administrative Agent in its reasonable discretion, (ii) enter into an Account Control Agreement, in form and substance satisfactory to the Administrative Agent in its reasonable discretion, and (iii) transfer all amounts held in such applicable Collateral Account(s) to such new Collateral Account(s), in each case within thirty (30) days (or such longer time as the Administrative Agent may agree in its reasonable discretion) of the date on which the Borrowers shall have knowledge or be notified by the Administrative Agent that the existing Depository has ceased to be an Eligible Institution.
Section 5.02. Further Assurances; Agreement to Deliver Additional Security Documents. The Borrowers shall promptly upon reasonable request of the Administrative Agent or any Lender through the Administrative Agent: (a) correct any material defect or error that may be discovered in any Finance Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re‑record, file, re‑file, register and re‑register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Finance Documents, (ii) to the fullest extent permitted by Applicable Law, subject the applicable Borrower’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Security Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Administrative Agent and Lenders the rights granted or now or hereafter intended to be granted to the Administrative Agent and Lenders under any Finance Document or under any other instrument executed in connection with any Finance Document to which such Borrower is or is to be a party.
Section 5.03. Subordination.
(a) During the occurrence and continuation of an Event of Default, unless required by Applicable Law, if there are any Obligations outstanding under the Finance Documents, the Borrowers shall not make any payments (except as expressly permitted hereunder), directly or indirectly, on any Financial Indebtedness owed to K-PEC, K-PEC Holdco or their Affiliates 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”). All Other Claims, together with all Liens, security interests, and all other encumbrances or charges 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, if there are any Obligations outstanding under the Finance Documents, be subordinated to and inferior in right and in payment to the Obligations and all Liens, security interests, and all other encumbrances or charges on assets securing all or any portion of the Obligations, and the Borrowers agree to take any actions reasonably requested by the Administrative Agent as are necessary to provide for such subordination between it and any other K‑PEC, K-PEC Holdco or their Affiliates, inter se, including but not limited to including provisions for such subordination in the documents evidencing the Other Claims.
(b) Pursuant to Section 7.03, the Borrowers may incur unsecured Financial Indebtedness at any time and from time to time so long as such Financial Indebtedness is (i) incurred pursuant to a facility solely between any Borrower and an Affiliate thereof (a “KKR Subordinated Unsecured Facility”) and (ii) is (or will be) subordinated to the Obligations pursuant to a Subordination Agreement to be entered into (A) in the case of any KKR Subordinated Unsecured Facility in effect on the Closing Date, not later than thirty (30) days following the Closing Date and (B) with respect to any KKR Subordinated Unsecured Facility entered into after the Closing Date, on or prior to the date that such Borrower enters into such KKR Subordinated Unsecured Facility.
ARTICLE 6
AFFIRMATIVE COVENANTS
So long as the Lenders have any Commitment to lend hereunder, and until payment in full of the Obligations (other than contingent obligations for which no claim has been asserted) under this Agreement and the other Finance Documents, each Borrower agrees that, without the prior written consent of the Administrative Agent on behalf of the Required Lenders (unless the approval of the Administrative Agent alone or a different number of Lenders is expressly required below).
Section 6.01. Reports and Financial Statements. The Borrowers shall deliver, shall cause to be delivered, or shall make available, as the case may be, to the Administrative Agent each of the following:
(a) within ninety (90) days after the end of each fiscal year of K-PEC (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one-hundred twenty (120) days after the end of each fiscal year of K-PEC), commencing with the fiscal year ending December 31, 2024, the audited financial statements of K-PEC as of the end of and for such year, all reported on by Deloitte & Touche LLP or any other independent public accountants of recognized national standing to the effect that such financial statements present fairly in all material respects the financial condition and results of operations of K-PEC in accordance with the Accounting Principles consistently (except as disclosed therein) applied; and
(b) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of K-PEC (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory
authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of K-PEC), the unaudited financial statements of K-PEC as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, all certified by a Responsible Officer of K-PEC as presenting fairly in all material respects the financial condition and results of operations of K-PEC in accordance with the Accounting Principles consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments, the absence of footnotes and as otherwise described therein.
Notwithstanding anything in this Section 6.01 to the contrary, the Borrowers shall be deemed to have satisfied the requirements of this Section 6.01 if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on EDGAR at the www.sec.gov website or any successor service provided by the SEC.
Section 6.02. Compliance Certificates.
(a) The Borrowers shall deliver a Compliance Certificate signed by a Responsible Officer of the Borrower Representative to the Administrative Agent concurrently with any delivery of financial statements under clause (a) or (b) of Section 6.01 and at any time that the LTV increases above the Maintenance LTV.
(b) Each Compliance Certificate shall (to the extent applicable):
(i) certify that no Event of Default, or to its knowledge, no Default or has occurred and is continuing, or, if a Default has occurred and is continuing, specify the details thereof and any action which such Borrower has taken or proposed to be taken with respect thereto as of the date of such financial statements,
(ii) certify as to whether the Borrowers are in compliance with each of the Financial Covenants and set forth reasonably detailed calculations of the LTV as of the date of such financial statements (including the Adjusted Aggregate Net Asset Value),
(iii) set forth the then‑current principal amount outstanding in respect of each KKR Subordinated Unsecured Facility;
(iv) at any time that the principal amount of any indebtedness (calculated by reference to the maximum principal amount permitted to be incurred thereunder) guaranteed by Borrowers pursuant to any Permitted Unsecured Guaranties exceeds five percent (5.0%) of Net Asset Value, set forth the maximum principal amount permitted to be incurred thereunder (inclusive of any increase features);
(v) certify that, to the knowledge of the applicable Responsible Officer, no Material Asset Event has occurred and is continuing with respect to any Eligible Asset which has not previously been disclosed to the Administrative Agent or, if one has occurred, the nature of such Material Asset Event; and
(vi) certify that such certificate is accurate and not misleading in any material respect as of the date of such delivery (the “Compliance Certificate”).
Section 6.03. Interim LTV Certificate.
(a) The Borrowers shall deliver an Interim LTV Certificate signed by a Responsible Officer of the Borrower Representative not later than ten (10) Business Days following its knowledge of the occurrence of any of the below events that shall have occurred after the end of the most recent period covered by a Compliance Certificate (or, to the extent more recently delivered, any Interim LTV Certificate or Appraisal Valuation):
(i) the acquisition of any Follow‑On Asset or new Eligible Asset;
(ii) either (A) the execution of a share and/or asset purchase (or similar or equivalent) agreement in respect of such Eligible Asset; or (B) the listing of shares constituting or forming part of such Eligible Asset on an internationally recognized exchange or market;
(iii) the occurrence of any write‑downs or write‑offs made in respect of any Eligible Asset in accordance with the Valuation Policy;
(iv) the Disposition of any Eligible Asset or partial Eligible Asset;
(v) the occurrence of any Material Asset Event in respect of any Eligible Asset; and
(vi) (A) any deduction attributable to distributions of Asset Proceeds made in respect of an Eligible Asset and (B) any increase attributable to any capital contributions made by the applicable Borrower in respect of such Eligible Asset;
(b) in each case, solely to the extent that the occurrence of any such event in clauses (i) through (vi) above (individually or in the aggregate), (x) occurs following the most recent Compliance Certificate, Interim LTV Certificate or Appraisal Valuation (if applicable), as the case may be and (y) results in a decrease of the Aggregate Net Asset Value by more than ten percent (10%) (it being agreed an understood that should any such occurrences (individually or in the aggregate) result in an increase of the Aggregate Net Asset Value, the Borrowers may, but are not required to, deliver such an Interim LTV Certificate) (each, an “Adjustment Event”).
(c) Each Interim LTV Certificate shall (to the extent applicable):
(i) describe the details of the relevant event(s) that gave rise to the delivery of such Interim LTV Certificate;
(ii) set forth the updated LTV and the updated Net Asset Value of the relevant Asset(s) after giving effect to any such event(s), and set out (in reasonable detail) the calculation thereof;
(iii) annex an updated Schedule 4.17;
(iv) set forth the then‑current principal amount outstanding in respect of each KKR Subordinated Unsecured Facility; and
(v) provide that such certificate and the attachments thereto are accurate and not misleading in any material respect as of the date of such delivery.
Section 6.04. Information: miscellaneous. The Borrowers shall deliver to the Administrative Agent:
(a) all documents made available by K‑PEC to its Non-KKR Equity Holders generally at the same time as they are made available to such investors;
(b) promptly following request by the Administrative Agent, evidence of the applicable Borrower’s ownership (directly or indirectly through a Holding Vehicle) of an Eligible Asset, in form and substance acceptable to the Administrative Agent, acting reasonably; in each case subject to confidentiality restrictions with any applicable third parties;
(c) as soon as is reasonably practicable upon becoming aware of them, the details of any Proceeding threatened or pending against the Borrowers which if adversely determined, would have or would be reasonably expected to have a Material Adverse Effect;
(d) as soon as is reasonably practicable following a request such further relevant information that the Administrative Agent reasonably requests regarding the financial condition, business and operations of K-PEC, the Borrowers or any Asset;
(e) as promptly as practicable following becoming aware of the same but in any event within two (2) Business Days thereof, notice that any Material Asset Event shall have occurred and any Eligible Asset has ceased to be an Eligible Asset, solely to the extent that the occurrence of such Material Asset Event results in a requirement to deliver an Interim LTV Certificate in accordance with Section 6.03 hereof;
(f) as promptly as practicable following becoming aware of the same, notice that a sale and purchase agreement has been entered into in respect of the Disposal of one or more Eligible Assets and (if known) the anticipated date of completion of such Disposal, in each case, solely to the extent that the occurrence of such Disposal results (or will result) in a requirement to deliver an Interim LTV Certificate in accordance with Section 6.03 hereof and to the extent the proceeds of such Disposal would constitute Asset Proceeds which would be required to be deposited into a Collateral Account;
(g) As soon as available at the end of each calendar quarter, each quarterly portfolio valuation positive assurance report relating to the Assets of the Borrowers received from the Borrowers’ valuation provider (it being understood that such access may be conditioned upon the Administrative Agent’s execution of a third-party access letter in favor of the applicable third-party valuation provider);
(h) as promptly as practicable following the occurrence thereof, notification of any amendment made to the PPM or Constitutional Documents of K-PEC or K-PEC Holdco
reasonably expected to have an adverse effect on the rights, powers, remedies and privileges of the Lenders in any material respect;
(i) as promptly as practicable in connection with any proposed or contemplated Material K-PEC Amendment;
(j) as promptly as practicable after becoming aware of any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification, notice of the same including such updated information required therein and if requested by the Administrative Agent, a new Beneficial Ownership Certification; or
(k) (x) such other information concerning the business, properties, or financial condition of any Borrower as the Administrative Agent shall reasonably request or any Lender shall request (through the Administrative Agent), and which information is not otherwise subject to confidentiality restrictions with third parties, and (y) information and documentation reasonably requested by the Administrative Agent or any Lender (through the Administrative Agent) as reasonably required by the Administrative Agent or such Lender to comply with applicable “know your customer” requirements under the Patriot Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or other applicable anti‑money laundering laws.
Notwithstanding anything in this Section 6.04 to the contrary, the Borrowers shall be deemed to have satisfied the requirements of this Section 6.04(a) and (h) if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on EDGAR at the www.sec.gov website or any successor service provided by the SEC.
Section 6.05. Notification. The Borrowers shall notify the Administrative Agent in writing of any Change of Control, the effectiveness of any Material K‑PEC Amendment or any Default that has occurred (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence, but in any event within two (2) Business Days of becoming aware thereof.
Section 6.06. Restrictions.
(a) Notwithstanding any other provision of the Finance Documents, all reporting and other information requirements in the Finance Documents shall be subject to any confidentiality, regulatory or other restrictions relating to the supply of information concerning or otherwise binding on any of the Investment Manager, K-PEC, K-PEC Holdco and the Borrowers, any general partner or manager of the Investment Manager, K-PEC, K-PEC Holdco and the Borrowers, any Holding Vehicle, any Portfolio Company or any of their respective Affiliates, provided that this Section 6.06 shall not apply to the Compliance Certificate or the information referred to in Section 6.01 or Section 6.02 (which shall in all cases be supplied to the Administrative Agent in accordance with this Agreement).
(b) The Borrowers shall not enter into any restrictions of a type referred to in paragraph (a) above with the primary intention of circumventing the reporting and other information requirements to which it is subject under the Finance Documents.
Section 6.07. Authorizations. The Borrowers shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect any Authorization required under any Applicable Law or regulation to:
(a) enable it to perform its obligations under the Finance Documents to which it is a party;
(b) ensure the legality, validity or enforceability against it of any Finance Document, subject to Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law); and
(c) carry on its business where failure to do so has or would reasonably be expected to have a Material Adverse Effect.
Section 6.08. Compliance with laws. The Borrowers shall comply in all respects with all Applicable Laws and regulations to which it may be subject, if failure so to comply would have or be reasonably likely to have a Material Adverse Effect. The Borrowers will maintain in effect and enforce, or be subject to, policies and procedures reasonably designed to ensure compliance by the Borrowers, their Subsidiaries and their respective directors, officers, employees and agents with Anti‑Corruption Laws and applicable Sanctions. The Borrowers shall ensure that it conducts its business in all material respects in compliance with applicable Anti‑Corruption Laws.
Section 6.09. Taxation. The Borrowers shall timely file or cause to be filed all U.S. federal income tax returns (if applicable and, in each case, including applicable extensions) and all other material Tax returns and reports required to be filed by the Borrowers, and duly and timely pay and discharge all U.S. federal income Taxes (if applicable and, in each case, including applicable extensions) and all other material Taxes imposed upon it or its assets (except to the extent that (a)(i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) adequate reserves in accordance with the Accounting Principles are being maintained for those Taxes or (b) the failure to file such tax returns or pay such Taxes make payment pending such contest would not reasonably be expected to have a Material Adverse Effect).
Section 6.10. Maintenance of Liens. The Borrowers shall ensure:
(a) their payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors; and
(b) the Collateral has first ranking priority and shall not grant or create, or suffer to exist, any prior ranking, pari passu ranking or junior ranking Lien (in each case, subject to Permitted Liens) on the Collateral.
(c) The Borrowers shall perform, all such acts and execute all such documents as the Administrative Agent may reasonably request in order to enable the Administrative Agent to file and record every instrument that such Agent may reasonably deem necessary in order to perfect and maintain the Administrative Agent’s first priority security interests (subject to any
Permitted Liens) in and Liens on the Collateral and otherwise to preserve and protect the rights of any Agent in respect of such security interests and Liens.
(d) To the extent the Borrower is incorporated, organized or formed in the Cayman Islands (as applicable), such Borrower shall promptly update its register of mortgages and charges to include an appropriate entry for each Security Document (as applicable).
Section 6.11. Asset Proceeds. The Borrowers shall take any and all actions to ensure that no transactions are entered into among any of the Borrowers, any Holding Vehicle, any Portfolio Company, KKR, K-PEC and/or K-PEC Holdco, which have the primary intention of circumventing the payment obligations of the Borrowers under this Agreement or any restrictions governing distributions or Dispositions in Sections 7.04 and 7.07 hereunder.
Section 6.12. Access. The Borrowers shall procure that, so long as an Event of Default has occurred and is continuing:
(a) the Administrative Agent is permitted free access at all reasonable times during normal business hours and on reasonable prior notice at the cost of the Borrowers to the premises, books and records of the Borrowers; and
(b) provide to the Administrative Agent such information as it may require regarding the Collateral, the Borrowers or any Asset (including Asset Proceeds).
Section 6.13. Compliance with Constitutional Documents and PPM. The Borrowers will comply, in all material respects, with all covenants and provisions of its Constitutional Documents and the requirements applicable to the Borrower in the PPM.
Section 6.14. ERISA Matters. Each Borrower agrees to use commercially reasonable efforts to promptly provide notice to the Administrative Agent in writing if the assets of the Borrower constitute “plan assets” of any “benefit plan investor” within the meaning of Section 3(42) of ERISA.
Section 6.15. Release of Borrowers. The Borrowers may elect, at their option, to release any Borrower hereunder at any time, upon not less than ten (10) Business Days’ prior notice to the Administrative Agent if (a) (i) such release is in connection with a Disposition not prohibited under Section 7.07 pursuant to which 100% of Assets held by such Borrower is Disposed of or (ii) the Borrowers shall have determined and notified the Administrative Agent that such Borrower will cease to be an Eligible Borrower, (b) immediately after giving effect to such release on a pro forma basis, no Change of Control or Default under Section 8.01(a), (g), (h), or (l) hereof has occurred and is continuing (unless, (1) such release was made or committed to prior to the Borrowers’ knowledge of or the occurrence of such Default or (2) such release is otherwise acceptable to the Administrative Agent and the Required Lenders in their sole discretion), (c) immediately after giving effect to such release on a pro forma basis, either the LTV is less than the Sellout LTV, or if the LTV is less than the Sellout LTV and greater than the Maintenance LTV, the LTV after giving effect to such release, is not greater than the LTV immediately prior to giving effect to such release and any release of such Borrower shall be deemed a
Disposition of all Assets held by such Borrower, and the Obligations shall be repaid in an amount equal to the Asset Proceeds (calculated by reference to the Net Asset Value attributable to such Assets as of the applicable release date) that would have been received by such Borrower had such Assets held by such Borrower been Disposed of in accordance with Section 7.07 up to an amount, following which, the LTV is less than the Maintenance LTV and (d) any Allocated Loan Amount of such Borrower shall have been paid in full in accordance with the terms hereof.
Upon the satisfaction of the above conditions, the Administrative Agent shall promptly execute all documents and instruments reasonably necessary for such Borrower to cease to be a Borrower hereunder and to release any Liens granted by such Borrower over its assets.
ARTICLE 7
NEGATIVE COVENANTS
So long as the Lenders have any Commitment to lend hereunder, and until payment and performance in full of the Obligations (other than contingent obligations for which no claim has been asserted) under this Agreement and the other Finance Documents, each Borrower agrees that, without the prior written consent of the Administrative Agent on behalf of the Required Lenders (unless the approval of the Administrative Agent alone or a different number of Lenders is expressly permitted below):
Section 7.01. Merger. No Borrower shall (a) liquidate, wind up or dissolve itself (b) merge, amalgamate or consolidate with or into any other Person, unless a Borrower is the surviving or continuing entity or (c) Divide.
Section 7.02. Negative Pledge. No Borrower shall create or suffer to exist any Liens over any Collateral or create or suffer to exist any Liens on any other assets or properties of such Borrower, in each case, other than Permitted Liens.
Section 7.03. Financial Indebtedness. Other than Permitted Financial Indebtedness, no Borrower shall incur, assume, suffer to exist, allow to remain outstanding or otherwise become or remain liable with respect to any Financial Indebtedness.
Section 7.04. Distributions. No Borrower shall make, pay or declare any dividend, distribution or payment (whether or not in cash), direct or indirect, on account of any Equity Interest in such Borrower including as a dividend or other distribution and on account of the purchase, redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of any such Equity Interest (any such dividend, distribution, payment, purchase, redemption, retirement, sinking fund, purchase or other acquisition, a “Distribution”), in each case other than, (i) any Distributions if, immediately before or after giving effect thereto, no Cash Control Event has occurred and is continuing or would result therefrom (other than, solely to the extent a Required LTV Plan is in effect, such Distribution is expressly contemplated thereby), or (ii) Tax Distributions.
Section 7.05. Sanctions. No Loan, nor any part of the proceeds of the Loans, will be used, directly or knowingly indirectly, or lent, contributed, provided or otherwise made available to, any person (i) for the purpose of financing any activities or business of or with any person or in any country or territory that at such time is the subject of any Sanctions (as of the Closing Date, the Crimea, Kherson and Zaporizhzhia regions of Ukraine, the so‑called People’s Republic of Donetsk and the so‑called People’s Republic of Luhansk, Cuba, North Korea, Iran and Syria), or in any other manner that will result in any violation by any person (including any Lender) of Sanctions or (ii) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti‑Corruption Laws.
Section 7.06. Certain Corporate Changes. No Borrower shall change its jurisdiction of incorporation, formation or organization, as applicable, without providing written notice thereof to the Administrative Agent at least ten (10) days prior thereto. No Borrower shall change its name or location of its principal office, chief executive office or principal place of business without providing written notice thereof to the Administrative Agent within five (5) days after the occurrence thereof.
Section 7.07. Dispositions.
(a) The Borrowers shall not, and shall not, solely to the extent within its control, permit any Holding Vehicle, to Dispose of any Asset (including any disposition of property to a Divided Entity pursuant to a Division) unless (a) such Disposition is made for fair value (as determined in accordance with the PPM) on terms no less favorable to the Borrowers than could have been obtained on an arm’s length basis from an unrelated third party, (b) such Disposition is made in accordance with the Constitutional Documents (and, solely to the extent applicable pursuant to Section 2.07(b)(ii), in accordance with any Required LTV Plan) and (c) the Asset Proceeds of such disposal are deposited in the Collateral Account (or, solely to the extent required pursuant to Section 2.07(b) or Section 2.07(c), applied towards any outstanding Obligations).
(b) Notwithstanding the foregoing, the Borrowers shall not, nor shall it permit any Holding Vehicle which it Controls to (or, in the case of any other Holding Vehicle of such Borrower, vote or consent to), Dispose of an Asset at any time a Cash Control Event has occurred and is continuing, or would result therefrom, except to the extent that solely in respect of Assets held directly by the Borrowers or indirectly through a Holding Vehicle controlled by the Borrowers, the Borrowers use their commercially reasonable efforts to ensure that the consideration paid or payable to such Borrowers or such Holding Vehicle in respect of such Disposition shall be paid in not less than 50% cash in immediately available funds.
Section 7.08. Transactions with Affiliates. No Borrower shall, directly or indirectly, enter into any transaction with any Affiliate unless a) such transaction is with another Borrower or (b) such transaction is on fair and reasonable terms no less favorable to such Borrower, as applicable, than those terms that might be obtained at the time in a comparable arm’s length transaction with a person who is not an Affiliate; provided that (a) unless a Cash Control Event has occurred and is continuing, any transaction that is
not prohibited under either of the PPM or the Constitutional Documents of such Borrower shall be deemed to comply with this Section 7.08 and (b) if a Cash Control Event has occurred and is continuing, such transaction shall (for the avoidance of doubt) be subject to, in the case of a Distribution, Section 7.04 and, in the case of a Disposition, Section 7.07.
Section 7.09. Constitutional Document Amendments.
(a) No Borrower shall alter, amend, modify, terminate, or change any provision of its Constitutional Documents that would (i) impair the Lenders’ rights in the Collateral; (ii) affect such Borrower’s debts, duties, obligations, and liabilities, other rights, titles, security interests, Liens, powers and privileges in the Assets; (iii) have an adverse effect on the rights, titles, first priority security interests (subject to any Permitted Liens) and Liens, and powers and privileges of the Lenders hereunder, (iv) cause the Acquisition Strategy or the Valuation Policy to cease to apply to such Borrower (or any Assets held thereby directly or indirectly through a Holding Vehicle) in any material respect or (v) prohibit the Facility or the incurrence of any indebtedness hereunder (any such amendment, a “Material Borrower Amendment”) without the prior written consent of the Administrative Agent and the Required Lenders (or the Lenders, in each case as required in accordance with clause (b) below).
(b) With respect to any such proposed Material Borrower Amendment (each, a “Proposed Amendment”), the applicable Borrowers shall notify the Administrative Agent of such proposal. The Administrative Agent shall determine, in its sole reasonable discretion and on its good faith belief, whether such Proposed Amendment to such Constitutional Documents would constitute a Material Borrower Amendment within five (5) Business Days of the date on which it received such notification in accordance herewith and shall promptly notify the applicable Borrower of its determination. If the approval of the Required Lenders shall be required (unless the approval of all Lenders is otherwise required consistent with the terms of this Agreement), the Administrative Agent shall promptly notify the Lenders of such request for such approval, distributing, as appropriate, the Proposed Amendment and any other relevant information provided by the Borrowers, and the Lenders shall have seven (7) Business Days from the date of such notice from the Administrative Agent to deliver their approval or denial thereof.
(c) The Borrowers shall provide not less than ten (10) Business Days prior notice in respect of the effectiveness of any alteration, amendment, modification, termination, or change to any provision of the Constitutional Documents of K-PEC or K-PEC Holdco or the PPM that results in or would reasonably be expected to result in any of the following (any such modification, a “Material K‑PEC Amendment”):
(i) affect or otherwise modify the debt limitations binding upon the Borrowers in a manner that would permit the Borrowers to incur or suffer to exist additional Financial Indebtedness (except to the extent permitted by this Agreement) or would reduce such debt limitations in a manner that would affect the Obligations under this Agreement;
(ii) modify, amend or supplement the Valuation Policy to the extent (after giving effect to such changes in the Valuation Policy) the result would be an
increase of two percent (2%) or more in the calculation of the K-PEC Net Asset Value, in the aggregate;
(iii) modify, amend or supplement the Acquisition Strategy applicable to the Borrowers in a manner that would materially change the investment policy or investment strategy of the Borrowers in a manner that would affect the nature, type or rating (as applicable) of the Assets held (or permitted to held) by the Borrowers (directly or indirectly through a Holding Vehicle); or
(iv) that would result in a Material Adverse Effect.
Except to the extent that the Administrative Agent and Required Lenders have consented in writing to a Material K‑PEC Amendment, upon the occurrence of any Material K‑PEC Amendment, a mandatory prepayment under Section 2.07 shall become due and owing in accordance with the provisions thereof.
Section 7.10. Burdensome Restrictions. No Borrower shall enter into or suffer to exist any agreement or contract (other than the Finance Documents) that contains restrictions, which would prevent or limit its ability to repay the Obligations and or enter into any amendment to its Constitutional Documents that could have the same effect.
Section 7.11. ERISA; Canadian Defined Benefit Plan. No Borrower shall establish, maintain, contribute to or have liability with respect to any Pension Plan or Multiemployer Plan except as would not reasonably be expected to have a Material Adverse Effect. No Borrower shall take any action that would cause the underlying assets of such Borrower to constitute “plan assets” of any “benefit plan investor” within the meaning of Section 3(42) of ERISA that would give rise to a “non‑exempt prohibited transaction” under Section 4975(c)-(1)(A)-(C) of the Code or Section 406(a) of ERISA and would subject Administrative Agent or the Lenders to any tax or penalty under Section 4975 of the Code or Section 502(i) of ERISA. No Borrower shall establish, maintain, contribute to or have liability with respect to any Canadian Defined Benefit Plan.
ARTICLE 8
EVENTS OF DEFAULT
Section 8.01. Events of Default. An “Event of Default” shall exist if any one or more of the following events (herein collectively called “Events of Default”) shall occur and be continuing (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) Non‑Payment. Any Borrower does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable (other than payments required pursuant to Section 2.07(b)) and, (i) solely in the case of interest and fees, such failure continues for a period of three (3) Business Days following such
failure, and (ii) solely in the case of any amounts other than principal, interest and fees, such failure continues for a period of five (5) Business Days following such failure.
(b) [Reserved].
(c) Breach of Negative Covenants. Any Borrower shall fail to perform, comply with or observe any agreement, covenant or obligation thereof under Article 7 hereof.
(d) Breach of Certain Covenants. Any Borrower shall fail to perform, comply with or observe any agreement, covenant or obligation thereof under Sections 5.01, 5.03, 6.05, 6.10, 6.12; provided that no Event of Default shall occur if the failure to comply is capable of remedy and is remedied within five (5) Business Days.
(e) Breach of Covenants under the Finance Documents.
(i) Any Borrower does not comply with any provision of the Finance Documents to which it is party (other than those provisions referred to in Sections 5.01 or 5.03, Sections 6.05, 6.10, 6.12, Article 7 or 8.01(a)).
(ii) No Event of Default under paragraph (i) above will occur if the failure to comply is capable of remedy and is remedied within thirty (30) calendar days of the earlier of (i) the Administrative Agent giving notice to the Borrowers and (ii) the Borrowers becoming aware of the relevant matter; provided that if such default is not susceptible of being cured with diligence within said thirty (30) day period, but, in the reasonable determination of Administrative Agent, is susceptible of being cured within an additional period, then such period may be extended by the Administrative Agent after consulting with the Required Lenders, for such additional period of time, not to exceed an additional thirty (30) days, as may reasonably be necessary to cure the same; provided that the applicable Borrowers commence such cure within such thirty (30) day period and diligently pursues the same until its completion.
(f) Misrepresentation. Any representation or statement made or deemed to be made by any Borrower in a Finance Document to which it is a party or any other document delivered by or on behalf of such Borrower under or in connection with any Finance Document to which it is a party is or proves to have been incorrect or misleading in any material respect when made or deemed to be made, unless the circumstances giving rise to the misrepresentation are capable of remedy and are remedied within thirty (30) calendar days of the earlier of (i) the Administrative Agent giving notice to the Borrowers and (ii) the Borrowers becoming aware of the relevant misrepresentation.
(g) Involuntary Bankruptcy; Appointment of Receiver, Etc. There shall be commenced against the Borrowers, K-PEC or any Investment Manager an involuntary case seeking the liquidation, provisional liquidation or reorganization of such entity under any Debtor Relief Law or an involuntary case or proceeding seeking the appointment of a receiver, liquidator, provisional liquidator, sequestrator, custodian, trustee or other officer having similar powers of the Borrowers, K-PEC or such Investment Manager or to take possession of all or a substantial portion of its property or to operate all or a substantial portion of its business, and the petition commencing
such involuntary case or proceeding remains undismissed and unstayed for a period of sixty (60) days or an order for relief shall have been issued or entered therein.
(h) Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) Any Borrower, K-PEC or any Investment Manager shall institute a voluntary case seeking liquidation, provisional liquidation or reorganization under any Debtor Relief Law, or shall consent thereto; or shall consent to the conversion of an involuntary case to a voluntary case; institute any proceeding seeking, or shall consent to or acquiesce in the appointment of, a receiver, liquidator, provisional liquidator, sequestrator, custodian, trustee, restructuring officer or other officer with similar powers of it or to take possession of all or a substantial portion of its property or to operate all or a substantial portion of its business; or shall make a general assignment for the benefit of creditors; or shall generally not pay its debts as they become due (ii) or any Borrower, K-PEC or such Investment Manager shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due (or threaten in writing to suspend paying its debts or admits inability to pay its debts as they fall due); or the authorizing body of any Borrower, K-PEC or such Investment Manager adopts any resolution or otherwise authorizes action to approve any of the actions referred to in this Section 8.01(h) or in Section 8.01(g).
(i) Termination of Finance Documents, Collateral, Etc. (i) Any Finance Document, or any material provision thereof, shall cease to be in full force and effect for any reason or shall be declared null or void, or any Lien in favor of the Administrative Agent or the Finance Parties shall fail to have or shall cease to be valid or perfected or have the priority required by the relevant Finance Document, except upon a release or termination of such Finance Document or Lien pursuant to the terms thereof; (ii) or any Borrower shall contest or purport to repudiate or disavow any of its obligations under or the validity or enforceability of any Finance Document or any material provision thereof; provided that if any of the events set forth in the foregoing clauses (i) or (ii) occur as a result of a change in any applicable Law, and is in the reasonable judgment of the Administrative Agent susceptible of being cured, then the Administrative Agent shall be permitted (in its sole discretion) to provide such Borrower up to thirty (30) days from the date thereof to cure a default arising under this Section 8.01(i) to the reasonable satisfaction of the Administrative Agent.
(j) Judgments and Attachments. Any Borrower shall suffer any unsatisfied money judgments, fines, writs or warrants of attachment or similar processes that, in the aggregate, involve an amount in excess $100,000,000 (in each case excluding therefrom money judgments to the extent covered by insurance as to which the carrier has not refused liability) and such judgments, fines, writs, warrants, decrees or other orders shall continue unsatisfied and unstayed for a period of sixty (60) Business Days.
(k) ERISA. (i) An ERISA Event shall occur that would reasonably be expected, individually or together one or more other ERISA Events, to have a Material Adverse Effect, (ii) any Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect, or (iii) any Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is being terminated, within the meaning of Title IV of ERISA, and as a result of such termination the
aggregate annual contributions of the applicable Borrower and the ERISA Affiliates to all Multiemployer Plans that are then being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such termination occurs by an aggregate amount that would reasonably be expected to result in a Material Adverse Effect.
(l) Material Portfolio Event. A Material Portfolio Event shall have occurred.
(m) Cross‑Default to Financial Indebtedness. A default shall occur with respect to the payment of any other recourse Financial Indebtedness or Guaranty Obligations of any Borrower in an aggregate amount of not less than five percent (5%) of the Aggregate Net Asset Value and such default shall permit such creditor, or such creditor shall cause such Financial Indebtedness to become due before its stated maturity by acceleration of the maturity thereof as a result of such default by such Borrower.
(n) Required LTV Plan. Any Borrower fails to comply, or, in the good faith and commercially determination of the Administrative Agent, to diligently pursue any Required LTV Plan in good faith as required pursuant to Section 2.07(b).
(o) Dissolution. K-PEC shall merge, amalgamate or consolidate with or into any other Person, unless K-PEC shall be the surviving person, and such merger, amalgamation or consolidation shall result in a Material Adverse Effect.
(p) Insolvency. The occurrence of an Event of Default under any of clauses (g) or (h) of this Section 8.01 with respect to K-PEC or K-PEC Holdco that results or would reasonably be expected to result in a Material Adverse Effect (for this purpose assuming that such sections apply to K-PEC and K-PEC Holdco to the same extent as to the Borrowers).
Section 8.02. [Reserved].
Section 8.03. Other Remedies.
(a) If an Event of Default occurs under Section 8.01(g) or 8.01(h), the obligations of the Lenders to make any Loan hereunder shall cease, and the unpaid principal amount of the Loans (including PIK Interest) and all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by each Borrower.
(b) If any other Event of Default occurs and is continuing, the Administrative Agent may (and at the direction of the Required Lenders shall) by written notice to the Borrowers (a) suspend the Commitments of the Lenders until such Event of Default is cured or waived; (b) terminate the Commitment of the Lenders hereunder; (c) declare the principal of (including any PIK Interest), and all interest then accrued on, the Obligations to be forthwith due and payable, whereupon the same shall forthwith become due and payable without presentment, demand, protest, notice of default, notice of acceleration, or of intention to accelerate or other notice of any kind (other than notice of such declaration) all of which each Borrower hereby expressly waives, anything contained herein or in any other Finance Document to the contrary notwithstanding; (d) exercise any right, privilege, or power set forth in Article 5 hereof or in the Security
Documents; or (e) without notice of default or demand, pursue and enforce any of the Administrative Agent’s or the Lenders’ rights and remedies under the Finance Documents, or otherwise provided under or pursuant to any applicable Law or agreement; provided that the Administrative Agent may select which remedies to exercise unless otherwise directed by the Required Lenders, in which case the Administrative Agent will exercise such remedies as directed by the Required Lenders, and provided, further, that if any Event of Default specified in Section 8.01(g) or (h) hereof shall occur, the principal of, and all interest on, the Obligations shall thereupon become due and payable concurrently therewith, without any further action by the Administrative Agent or the Lenders, or any of them, and without presentment, demand, protest, notice of default, notice of acceleration, or of intention to accelerate or other notice of any kind, all of which each Borrower hereby expressly waives.
(c) Notwithstanding anything to the contrary in this Agreement or any other Finance Document:
(i) when exercising any or all of its rights, remedies and powers under any of the Finance Documents to enforce any Transaction Security, the Administrative Agent shall use reasonable endeavours to maximize the proceeds of the enforcement of such Transaction Security (without being under any obligation to delay the timing of any sale or appropriation); and
(ii) if while an Event of Default is continuing all amounts outstanding under the Facility at that time are indefeasibly repaid in full in cash and the obligations of the Finance Parties under this Agreement cease, all Collateral and obligations of the Borrowers under the Finance Documents to which they are a party shall be released and discharged.
(d) Notwithstanding anything to the contrary in this Agreement or any other Finance Document or any other agreement, arrangement or understanding between the parties hereto relating to this Agreement, with respect to any Borrower organized under the laws of Hong Kong, each of the parties hereto (other than any Excluded Counterparties) expressly agrees to be bound by any suspension of any termination right in relation to this Agreement imposed by the Resolution Authority in accordance with section 90(2) of the Financial Institutions (Resolution) Ordinance (Cap. 628) of Hong Kong, to the same extent as if this Agreement was governed by the laws of Hong Kong. For the purpose of this Section 8.01(b): (i) “Excluded Counterparty” means any party hereto which is (A) a financial market infrastructure (B) the Hong Kong Monetary Authority; (C) the Government of the Hong Kong Special Administrative Region; (d) the government of a jurisdiction other than Hong Kong; or (e) the central bank of a jurisdiction other than Hong Kong; and (ii) “Resolution Authority” means the resolution authority in Hong Kong in relation to a banking sector entity from time to time, which is currently the Hong Kong Monetary Authority.
Section 8.04. Application of Proceeds. If the unpaid principal amount of the Loans (including PIK Interest) and all other Obligations have become due and payable following an Event of Default, and such acceleration and its consequences have not been rescinded and annulled, any funds collected by the Administrative Agent or any Lender
hereunder or pursuant to any other Finance Document shall be applied (subject to Section 2.11) by the Administrative Agent and the Lenders in the following order:
First, to pay all fees and costs and expenses of the custodian (if any) and the Administrative Agent;
Second, to pay all accrued and unpaid interest on the Loans;
Third, to pay all unpaid principal of the Loans (including PIK Interest);
Fourth, to pay, on a pari passu basis, any other outstanding Obligations;
Fifth, to pay the remainder, if any, to the Borrowers or to any other person legally entitled thereto.
Notwithstanding the foregoing, the Administrative Agent shall, at its option use any amounts received on account of the Obligations, including any Asset Proceeds to make payments set forth above in respect of the Obligations, or in lieu thereof, to make payments in respect of Asset Obligations to the extent then due and payable.
Section 8.05. Excluded Matters. Notwithstanding any other term of the Finance Documents but without prejudice to any consequential obligations of the Borrowers under the Finance Documents, there shall be no restriction on:
(a) any Borrower making direct or indirect subscription for shares in, and any direct or indirect capital contributions (in any manner) to, any of its Subsidiaries or providing any shareholder debt to any of its Subsidiaries;
(b) any Borrower selling, leasing, transferring or otherwise disposing of any of its assets including, for the avoidance of doubt, any Asset; and/or
(c) any Borrower entering into any transaction in the ordinary course of its activities in respect of or relating to any Asset (other than to the extent that entering into such transaction would cause a breach of Section 6.11).
ARTICLE 9
THE AGENTS
Section 9.01. Appointment.
(a) Authority of the Administrative Agent. Each Lender hereby designates and appoints SMBC, as the Administrative Agent of such Lender to act as specified herein and the other Finance Documents, and each such Lender hereby authorizes the Administrative Agent, as the agent for such Lender, to take such action on its behalf under the provisions of this Agreement and the other Finance Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms hereof and of the other Finance Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere herein and in the other Finance Documents, the
Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein and therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any of the other Finance Documents, or shall otherwise exist against the Administrative Agent. The provisions of this Article 9 are solely for the benefit of the Administrative Agent and the Lenders and none of the Borrowers or any Affiliate of the foregoing (each, a “Borrower Party”) or any investor or its Affiliates shall have any rights as a third‑party beneficiary of the provisions hereof (except for the provisions that explicitly relate to the Borrowers in Section 9.10 hereof). In performing its functions and duties under this Agreement and the other Finance Documents, the Administrative Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship of agency or trust with or for any Borrower Party.
(b) Release of Collateral. The Finance Parties irrevocably authorize the Administrative Agent, at the Administrative Agent’s option and in its sole discretion, to release any security interest in or Lien on any Collateral granted to or held by the Administrative Agent: (i) upon termination of this Agreement and the other Finance Documents, termination of the Commitments and payment in full of all of the Obligations, including all fees and indemnified costs and expenses that are then due and payable pursuant to the terms of the Finance Documents; (ii) pursuant to any express provision of any Finance Document; and (iii) if approved by the Lenders pursuant to the voting thresholds provided for in this Agreement. Upon the request of the Administrative Agent, the Lenders shall confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant to this Section 9.01(b).
Section 9.02. Delegation of Duties. The Administrative Agent may execute any of its duties hereunder or under the other Finance Documents by or through agents or attorneys‑in‑fact and shall be entitled to advice of legal counsel, accountants, and other professionals selected by the Administrative Agent concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible to any Lender for the negligence or misconduct of any agents or attorneys‑in‑fact selected by it with reasonable care, nor shall it be liable for any action taken or suffered in good faith by it in accordance with the advice of such Persons.
Section 9.03. Exculpatory Provisions. Neither the Administrative Agent nor any of its Affiliates, nor any of their respective officers, directors, employees, agents or attorneys‑in‑fact, shall be liable to any Lender for any action lawfully taken or omitted to be taken by it or such person under or in connection herewith or in connection with any of the other Finance Documents (except for its or such person’s own gross negligence or willful misconduct) or responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any of the Borrower Parties contained herein or in any of the other Finance Documents or in any certificate, report, document, financial statement or other written or oral statement referred to or provided for therein, or received by the Administrative Agent under or in connection herewith or in connection with the other Finance Documents, or enforceability or sufficiency therefor of any of the other Finance Documents, or for any failure of a Borrower Party to perform its obligations hereunder or thereunder. The Administrative Agent shall not be responsible to any Lender for the effectiveness, genuineness, validity, enforceability, collectability
or sufficiency of this Agreement, or any of the other Finance Documents or for any representations, warranties, recitals or statements made herein or therein or made by any Borrower Party in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Administrative Agent to the Lenders or by or on behalf of the Borrower Parties to the Administrative Agent or any Lender or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the existence or possible existence of any Default or Event of Default or to inspect the properties, books or records of the Borrower Parties. The Administrative Agent is not a trustee for the Lenders and owes no fiduciary duty to the Lenders hereunder and/or pursuant to the Pledge and Security Agreements, as each is governed by New York law. Each Lender recognizes and agrees that the Administrative Agent shall not be required to determine independently whether the conditions described in Section 3.01 and 3.02 hereof have been satisfied and, when the Administrative Agent disburses funds to any Borrower, it may rely fully upon statements contained in the relevant requests by any Borrower.
Section 9.04. Reliance on Communications. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, email, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including, without limitation, counsel to any of the Borrower Parties, independent accountants and other experts selected by the Administrative Agent with reasonable care). The Administrative Agent may deem and treat each Lender as the owner of its interests hereunder for all purposes unless an Assignment Agreement shall have been delivered to the Administrative Agent in accordance with Section 10.06 hereof. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or under any of the other Finance Documents unless it shall first receive such advice or concurrence of the Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any of the other Finance Documents in accordance with a request of the Required Lenders (or to the extent specifically required, all the Lenders) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders (including their successors and assigns).
Section 9.05. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or a Borrower Party referring to the Finance Document, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Required Lenders and as is permitted by the Finance Documents.
Section 9.06. Non‑Reliance on the Administrative Agent and the Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its Affiliates nor any of their respective officers, directors, employees, agents or attorneys‑in‑fact has made any representations or warranties to it and that no act by the Administrative Agent or any Affiliate thereof hereinafter taken, including any review of the affairs of any Borrower Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower Parties and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of the Borrower Parties which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys‑in‑fact or Affiliates.
Section 9.07. Indemnification. The Lenders agree to, jointly and severally, indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their respective Applicable Percentages, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including without limitation at any time following payment in full of the Obligations) be incurred by the Administrative Agent in its capacity as such in any way relating to or arising out of this Agreement or the other Finance Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence, fraud or willful misconduct of the Administrative Agent. If any indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this Section 9.07 shall survive the payment of the Obligations.
Section 9.08. Administrative Agent in Its Individual Capacity. With respect to the Loans made and all obligations owing to it, the Administrative Agent acting in its individual capacity shall have the same rights and powers under this Agreement as any Lender and may exercise the same as though it were not an agent, and the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity. The Administrative Agent acting in its individual capacity and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Borrower as though the Administrative Agent were not an agent hereunder and without any duty to account therefor to the other Lenders.
Section 9.09. Successor Agent. The Administrative Agent may, (i) with the written consent of the Borrowers in their sole discretion, or (ii) upon the declaration that the Obligations are immediately due and payable pursuant to Section 8.03 hereof upon the occurrence of an Event of Default, resign upon twenty (20) days’ written notice to the Lenders and the Borrowers. In addition, the Required Lenders may remove the Administrative Agent upon twenty (20) days’ written notice to the Administrative Agent and Borrowers (i) for gross negligence, fraud or willful misconduct or (ii) if the Administrative Agent ceases to be a Lender hereunder. Upon any such resignation or removal of the Administrative Agent, the Required Lenders shall have the right to appoint a successor Administrative Agent (subject, except when an Event of Default of the type described in Sections 8.01(a), (f) or (g) hereof (or any other Event of Default which has continued uncured for a period of thirty (30) days) exists, to the consent of the Borrowers, such consent not to be unreasonably withheld). If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within sixty (60) days after the notice of resignation, then the retiring Administrative Agent shall select a successor Administrative Agent (subject, except when an Event of Default of the type described in Sections 8.01(a), (f) or (g) hereof (or any other Event of Default which has continued uncured for a period of sixty (60) days) exists, to the consent of the Borrowers, not to be unreasonably withheld); provided that such successor is an Eligible Assignee (or if no Eligible Assignee shall have been so appointed by the retiring Administrative Agent and shall have accepted such appointment, then the Lenders shall perform all obligations of the retiring Administrative Agent hereunder until such time, if any, as a successor Administrative Agent shall have been appointed and shall have accepted such appointment as provided for above). Prior to the occurrence and continuance of an Event of Default pursuant to Sections 8.01(a), (f) or (g) hereof or any other Event of Default that has not been cured within sixty (60) calendar days, in no event may any Competitor be appointed successor Administrative Agent hereunder. Upon the acceptance of any appointment as an Administrative Agent hereunder by a successor, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and shall assume the duties and obligations of such retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations as the Administrative Agent under this Agreement and the other
Finance Documents and the provisions of this Section 9.09 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement.
Section 9.10. Reliance by the Borrowers. Each Borrower shall be entitled to rely upon, and to act or refrain from acting on the basis of, any notice, statement, certificate, waiver or other document or instrument delivered by the Administrative Agent to such Borrower so long as the Administrative Agent is purporting to act in its respective capacity as the Administrative Agent pursuant to this Agreement, and such Borrower shall not be responsible or liable to any Lender (or to any participant or assignee), or as a result of any action or failure to act (including actions or omissions which would otherwise constitute defaults hereunder) which is based upon such reliance upon the Administrative Agent. Such Borrower shall be entitled to treat the Administrative Agent as the properly authorized Administrative Agent pursuant to this Agreement until such Borrower shall have received notice of resignation, and such Borrower shall not be obligated to recognize any successor Administrative Agent until such Borrower shall have received written notification satisfactory to it of the appointment of such successor.
Section 9.11. Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, provisional liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Borrower, the Finance Parties acknowledge and agree that the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Finance Parties (including any claim for the reasonable compensation, expenses, disbursements and advances of the Finance Parties and their respective agents and counsel and all other amounts due the Finance Parties hereunder) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, provisional liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Finance 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 Finance 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 Finance Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Finance Party or to authorize the Administrative Agent to vote in respect of the claim of any Finance Party in any such proceeding.
Section 9.12. Delivery of Notices to the Lenders. Promptly upon receipt of any written notice, report or information from the Borrowers under the Finance Documents, the Administrative Agent will provide copies of such notice, report or information to the Lenders in a time and manner reasonable under the circumstances.
Section 9.13. Erroneous Payments.
(a) If the Administrative Agent notifies a Lender or any person who has received funds on behalf of a Lender (any such Lender or other recipient, but in any event excluding any Borrower and its Affiliates, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof) (provided that without limiting any other rights or remedies at law or in equity, including without restricting any of Administrative Agent’s rights to at any time demand a return of any Erroneous Payment during the duration of this Agreement, the Administrative Agent will use commercially reasonable efforts to make any such demand under this clause (a) with respect to an Erroneous Payment not later than two (2) Business Days from the date that such funds were received by a Payment Recipient), (i) such Erroneous Payment comprised of funds of the Administrative Agent shall at all times remain the property of the Administrative Agent, (ii) such Erroneous Payment comprised of funds of a Borrower shall at all times remain the property of such Borrower, and (iii) such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received). To the extent that any demand under this clause (a) with respect to an Erroneous Payment is made: (x) within two (2) Business Days that any such funds were received in error by a Payment Recipient, such Payment Recipient shall repay the Erroneous Payment, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent and (y) after two (2) Business Days any such funds were received in error by a Payment Recipient, such Payment Recipient shall repay the Erroneous Payment together with interest thereon in respect of each day from and including the date that Administrative Agent demands repayment of such Erroneous Payment (or portion thereof) to the date such amount is repaid to the Administrative Agent; in each case, in same day funds with a rate of interest equal to the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clause (x) or (y)), or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.13(b).
(c) Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Finance Document, or otherwise payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent under the immediately preceding clause (a) or under the indemnification provisions of this Agreement; provided that to the extent (i) such Erroneous Payment is comprised of the Administrative Agent’s funds and (ii) the amounts owing to such Lender constitute Loans, the Loans held by such Lender shall remain Loans hereunder and shall be deemed to be assigned to the Administrative Agent and the Administrative Agent shall become a Lender holding such Loans.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with the immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) with respect to which such Erroneous Payment was made in an amount equal to the Erroneous Payment Return Deficiency (such assignment of Loans (but not Commitments), the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrowers) deemed to execute and deliver an Assignment Agreement (or, to the extent applicable, an agreement incorporating an Assignment Agreement by reference pursuant to an approved electronic communication method pursuant to Section 10.01(b) hereof, as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the applicable Borrower or the Administrative Agent, (ii) the Administrative Agent as the
assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(e) The parties hereto agree that an Erroneous Payment shall not be deemed to pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from, or held on behalf of, a Borrower for the purpose of prepaying, repaying, discharging or otherwise satisfying any Obligations owed by such Borrower.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set‑off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 9.13 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Finance Document.
(h) Notwithstanding anything to the contrary herein or in any other Finance Document, no Borrower nor any of its Affiliates shall have any obligations or liabilities directly or indirectly arising out of this Section 9.13 in respect of any Erroneous Payment (other than having consented to the assignment referenced in Section 9.13(d) above).
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices.
(a) Notices Generally. Any notice or other communication herein required or permitted to be given to the Borrowers or the Administrative Agent, shall be sent to such person’s address as set forth on Schedule 10.01 hereto or in the other relevant Finance Document, and in the case of any Lender, the address as indicated on Schedule 10.01 hereto or otherwise indicated to the Administrative Agent in writing. Except as otherwise set forth in clause (b) below, each notice hereunder shall be in writing and may be personally served or sent by electronic mail or a nationally recognized overnight courier service and shall be deemed to have been given when
signed for against receipt thereof or upon receipt of electronic mail; provided that (i) any such notice or other communication shall at the request of the Administrative Agent be provided to any sub‑agent appointed pursuant to Section 10.03(c) as designated by the Administrative Agent from time to time; (ii) any such notice or other communication to the Administrative Agent may be made via SWIFT (to the extent, under this clause (ii), that such notice or communication is reasonably able to be sent in such manner); and (iii) any notice to the Borrowers sent by electronic mail must be accompanied by delivery by United States mail or a nationally recognized overnight courier service and shall be treated for purposes hereunder as being sent by United States mail or courier service.
(b) Electronic Communications.
(i) Notices and other communications to any Agent and Lenders hereunder may be delivered or furnished by electronic communication (including e mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Agent or any Lender pursuant to Article 2 if such person has notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. The Administrative Agent or the Borrower Representative may, in their respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (A) notices and other communications (other than notices and communications to the Borrowers) sent to an e‑mail address shall be deemed received upon the intended recipient’s receipt thereof (without any “undeliverable” message or other evidence of non‑delivery received by the sender); 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 (B) notices or communications (other than notices and communications to the Borrowers) 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 (A) of notification that such notice or communication is available and identifying the website address therefor.
(ii) The Borrowers understand that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of the Administrative Agent, as determined by a final, non‑appealable judgment of a court of competent jurisdiction.
(iii) The Platform and any Approved Electronic Communications are provided “as is” and “as available”. None of the Agents or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved
Electronic Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non‑infringement of third party rights or freedom from viruses or other code defects is made by the Agent Affiliates in connection with the Platform or the Approved Electronic Communications. In no event shall the Agent Affiliates have any liability to any Borrower, any Lender or any other person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of communications through the Platform or an Approved Electronic Communication.
(iv) The Borrowers, each Lender and each Agent agrees that the Administrative Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.
(v) Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of written notice thereof.
Section 10.02. Expenses. The Borrowers agree to pay (within five (5) days after the receipt of written notice from the Administrative Agent) its pro rata share of all reasonable, documented out‑of‑pocket costs and expenses of the Administrative Agent (including without limitation the reasonable fees and expenses of one designated law firm in each applicable jurisdiction acting as counsel to the Administrative Agent) reasonably and actually incurred by it in connection with the negotiation, preparation, execution and delivery of this Agreement and the other Finances Documents and any and all amendments, modifications, waivers and supplements thereof or thereto, and, if an Event of Default is continuing, all reasonable, documented out‑of‑pocket costs and expenses of the Administrative Agent and the Lenders (including, without limitation, the reasonable attorneys’ fees of the Administrative Agent’s and the Lenders’ legal counsel) reasonably incurred by them in connection with the preservation and enforcement of the Administrative Agent’s and the Lenders’ rights under this Agreement and the other Finance Documents.
Section 10.03. Indemnity.
(a) In addition to the payment of expenses pursuant to Section 10.02, whether or not the transactions contemplated hereby shall be consummated, each Borrower agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and each of their respective officers, partners, members, directors, trustees, advisors, employees, agents, sub‑agents and affiliates (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided that each Borrower shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities (x) arise directly from the bad faith, fraud, gross negligence or willful misconduct of such Indemnitee or from any dispute between or among the Indemnitees and not
involving any Borrower or its Affiliates (y) have not resulted from an act or omission by any Borrower or its Affiliates and have been brought by an Indemnitee against any other Indemnitee (other than a claim or dispute involving an Indemnitee in its capacity as the Administrative Agent, in each case, as determined by a final, non‑appealable judgment of a court of competent jurisdiction). To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.03 may be unenforceable in whole or in part because they are violative of any law or public policy, each Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them; provided, further, that no Borrower shall, in connection with any such Indemnified Liabilities in the same jurisdiction, be liable for the reasonable fees and expenses of more than one law firm (which shall be selected by the Administrative Agent after consultation with the Borrowers) at any one time for the Indemnitees as a whole (and, if necessary, one firm of local counsel in each appropriate jurisdiction and regulatory field, as applicable, at any one time for the Indemnitees as a whole) and in the case of a conflict of interest where the Indemnitee affected by such conflict informs the applicable Borrowers of such conflict, such Borrowers shall be responsible for the reasonable fees and expenses of one firm of counsel (and, if necessary, one firm of local counsel in each appropriate jurisdiction and regulatory field) for each such affected Indemnitee. If any action, suit or proceeding is brought against any Indemnitee in connection with any claim for which it is entitled to indemnity hereunder, such indemnified person shall (x) promptly notify the applicable Borrowers in writing of such action, suit or proceeding and (y) give such Borrowers an opportunity to consult from time to time with such Indemnitee regarding defensive measures and potential settlement. This Section 10.03(a) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or similar amounts and related expenses and counsel fees arising from any non‑Tax claim.
(b) To the fullest extent permitted by Applicable Law, no party hereto shall assert, and each such party hereby waives, any claim against any other party and their respective Affiliates, directors, employees, attorneys, agents or sub‑agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Finance Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or any Loan, or the use of the proceeds thereof; provided that nothing in this clause (b) shall relieve the Borrowers of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. None of any Lender or any Agent or any of their respective Affiliates, directors, employees, attorneys, agents or sub‑agents shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Finance Documents or the transactions contemplated hereby or thereby except to the extent that liability is determined by a court of competent jurisdiction by final and non‑appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or from the material breach by such Indemnitee of its obligations under the Finance Documents.
(c) The Borrowers also agree that no Lender or Agent nor their respective Affiliates, directors, employees, attorneys, agents or sub‑agents will have any liability to the
Borrowers or any person asserting claims on behalf of or in right of the Borrowers or any other person in connection with or as a result of this Agreement or any Finance Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan, or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, in each case, except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Borrowers or their respective Affiliates, shareholders, partners or other equity holders have been found by a final, non‑appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of, or a material breach by, such Lender or Agent or their respective Affiliates, directors, employees, attorneys, agents or sub‑agents in performing its obligations under this Agreement or any Finance Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein; provided that in no event will such Lender or Agent, or their respective Affiliates, directors, employees, attorneys, agents or sub‑agents have any liability for any indirect, consequential, special or punitive damages in connection with or as a result of such Lender’s or Agent’s, or their respective Affiliates’, directors’, employees’, attorneys’, agents’ or sub‑agents’ activities related to this Agreement, any Finance Document, or any agreement or instrument contemplated hereby or thereby or referred to herein or therein.
(d) This Section 10.03 shall survive the termination of the Agreement and the resignation or removal of the Agents.
Section 10.04. Set‑Off. In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, upon the occurrence and continuance of any Event of Default each Lender is hereby authorized by the Borrowers at any time or from time to time subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to the Borrower Representative or to any other person (other than the Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other indebtedness at any time held or owing by such Lender to or for the credit or the account of the Borrowers against and on account of the obligations and liabilities of the Borrowers to such Lender hereunder and under the Finance Documents, including all claims of any nature or description arising out of or connected hereto and participations therein or with any other Finance Document, irrespective of whether or not (a) such Lender shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant to Article 2 and although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that if any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Sections 2.06 and 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (ii) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it
exercised such right of setoff. Each Lender agrees to notify the Borrower Representative and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender and their respective Affiliates under this Section 10.04 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have.
Section 10.05. Amendments and Waivers.
(a) Required Lenders’ Consent. Subject to the additional requirements of Section 10.05(b) and the provisos below, no amendment, modification, termination or waiver of any provision of this Agreement, or consent to any departure by the Borrowers therefrom, shall in any event be effective without the written concurrence of the Required Lenders; provided that (i) the Administrative Agent may, with the consent of the Borrower Representative only, amend, modify or supplement this Agreement or any other Finance Document to cure any ambiguity, omission, defect or inconsistency (as reasonably determined by the Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment and (ii) the Administrative Agent may, in its sole and absolute discretion, consent to any action or omission as set forth in this Agreement and may grant waivers, concessions and other indulgences in accordance with the terms of this Agreement.
(b) Unanimous Lenders’ Consent. Without the written consent of each Lender affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not prepayment);
(iii) reduce the rate of interest or fee on any Loan;
(iv) extend the time for payment of any such interest or fee;
(v) reduce the principal amount of any Loan;
(vi) amend the definition of “Adjusted Aggregate Net Asset Value”, “Aggregate Net Asset Value”, “Cash Sweep LTV”, “Cure Plan LTV”, “Eligible Asset”, “LTV”, “Maintenance LTV”, “Material Asset Event”, “Net Asset Value”, “Required Lenders” or “Sellout LTV” or any defined terms used therein;
(vii) amend, modify, terminate or waive any provision of this Section 10.05(b), Section 10.05(c) or any other provision of this Agreement that expressly provides that the consent of all Lenders is required;
(viii) amend the definition of “Required Lenders” or any of the related defined terms;
(ix) consent to the assignment or transfer by a Borrower of any of its rights and obligations under (or in respect of) the Finance Documents;
(x) release all or any material portion of the Collateral except as expressly provided in the Finance Documents and except in connection with a “credit bid” undertaken by the Administrative Agent at the direction of the Required Lenders pursuant to Section 363(k), Section 1029(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other analogous Debtor Relief Law or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Finance Documents (in which case only the consent of the Required Lenders will be needed for such release);
(xi) change the currency in which any Obligation is denominated;
(xii) change Section 2.15 in a manner that would alter the pro rata sharing of payments required thereby; or
(xiii) subordinate (i) the Liens on all or any of the Collateral securing the Obligations to Liens securing any other Financial Indebtedness or other obligations or (ii) the Obligations in contractual right of payment to any other Financial Indebtedness or other obligations.
(c) Other Consents. Except as set forth in clause (a) above, no amendment, modification, termination or waiver of any provision of this Agreement, or consent to any departure by the Borrowers therefrom, shall amend, modify, terminate or waive any provision of this Agreement as the same applies to any Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent, as applicable.
(d) Execution of Amendments, Etc. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Borrowers in any case shall entitle any Borrower to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.05 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by the Borrowers, on the Borrowers.
(e) Cashless Settlement. Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower Representative, the Administrative Agent and such Lender.
Section 10.06. Successors and Assigns; Participations.
(a) Generally. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders. Neither the Borrowers’ rights or obligations hereunder nor any interest therein may be assigned or delegated by the Borrowers without the prior written consent of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders and other Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Register. The Administrative Agent acting solely for this purpose as a non‑fiduciary agent of the Borrowers shall maintain a register on which it records the name and address of each Lender and the principal amounts of (and stated interest on) each Lender’s Applicable Percentage interest with respect to the Loans (the “Lender Register”). The Borrowers, the Administrative Agent and Lenders shall deem and treat the persons listed as Lenders in the Lender Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until recorded in the Lender Register following receipt of a fully executed Assignment Agreement effecting the assignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees payable in connection with such assignment, in each case, as provided in Section 10.06(d). Each assignment shall be recorded in the Lender Register promptly following receipt by the Administrative Agent of the fully executed Assignment Agreement and all other necessary documents and approvals, prompt notice thereof shall be provided to the Borrowers and a copy of such Assignment Agreement shall be maintained, as applicable. Prompt notice of such recordation in the Lender Register shall be provided to the Borrowers. The date of such recordation of a transfer shall be referred to herein as the related “Assignment Effective Date”. Any request, authority or consent of any person who, at the time of making such request or giving such authority or consent, is listed in the Lender Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans. The Lender Register shall be available for inspection by the Borrowers, at any reasonable time and from time to time upon reasonable prior notice.
(c) Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including all or a portion of its Commitment or Loans owing to it or other Obligations (provided that pro rata assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and any related Commitments) to any Eligible Assignee upon the receipt of consent of the Administrative Agent (each such consent not to be unreasonably withheld or delayed); provided that:
(i) each such assignment pursuant to this Section 10.06(c) shall be in an aggregate amount of not less than the lesser of (A) $5,000,000, (B) such lesser amount as agreed to by the Borrowers and Administrative Agent or (C) the aggregate amount of the Loans and any related Commitments of the assigning Lender;
(ii) no consent of the Administrative Agent shall be required for any assignment by a Lender pursuant to a consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all its assets to, another entity (but without prejudice to any other right or remedy under this Agreement) or to any Affiliate of the assigning Lender;
(iii) the Borrowers have consented to such assignment (such consent not to be unreasonably withheld or delayed); provided that, no consent of the Borrowers shall be required (A) for an assignment by a Lender (x) pursuant to a consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all its assets to, another entity (but without prejudice to any other right or remedy under this Agreement) or (y) to any Affiliate or (B) during the existence of an Event of Default of the type described in Section 8.01(a), (g) or (h) hereof;
(iv) prior to the occurrence and continuance of an Event of Default pursuant to Sections 8.01(a), (f) or (g) or any other Event of Default that has not been cured within sixty (60) calendar days, the assignee shall not be a Competitor;
(v) no Lender shall be permitted to make an assignment of unfunded Commitments to any person, except to the extent the Borrowers have consented to such assignment in writing; and
(vi) no assignment shall be made by a Lender to any Borrower or Affiliates of any Borrower, or any investment manager thereof, except that a Lender may make an assignment to an Affiliated Lender, provided that: (A) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under, this Agreement or any other Finance Document, each Affiliated Lender will be deemed to have consented in the same proportion as the non‑Affiliated Lenders that have consented to such matter, and (B) for purposes of voting on any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (each, a “Plan of Reorganization”), each Affiliated Lender hereby agrees (x) not to vote on such Plan of Reorganization, (y) if such Affiliated Lender does vote on such Plan of Reorganization notwithstanding the restriction in the foregoing clause (x), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Plan of Reorganization in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (z) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (y), in each case under this clause (vi). Each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney‑in‑fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender from time to time in the Administrative
Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary or appropriate to carry out the provisions of this clause (vi), including to ensure that any vote of such Affiliated Lender on any Plan of Reorganization is withdrawn or otherwise not counted.
(d) Mechanics. Assignments and assumptions of Loans and Commitments by Lenders shall be effected by manual execution and delivery to the Administrative Agent of an Assignment Agreement. Assignments made pursuant to the foregoing provision shall be effective as of the Assignment Effective Date. In connection with all assignments there shall be delivered to the Administrative Agent such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment Agreement may be required to deliver pursuant to Section 2.10(e), together with payment to the Administrative Agent of a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an assignee that is already a Lender or is an Affiliate of a Lender or a person under common management with a Lender).
(e) Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be, represents and warrants as of the Closing Date or as of the Assignment Effective Date that: (i) it is an Eligible Assignee and can make the representations set forth in Section 10.21 as it were a Lender for purposes thereof; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be; (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.06, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control); and (iv) it will not provide any information obtained by it in its capacity as a Lender to any Competitor or any Affiliate thereof.
(f) Effect of Assignment. Subject to the terms and conditions of this Section 10.06, as of the Assignment Effective Date: (i) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as reflected in the Lender Register and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned to the assignee, relinquish its rights (other than any rights which survive the termination hereof under Section 10.08) and be released from its obligations hereunder (and, in the case of an assignment covering all or the remaining portion of an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto on the Assignment Effective Date; provided that anything contained in any of the Finance Documents to the contrary notwithstanding, such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified herein with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii) the Commitments shall be modified to reflect any Commitment of such assignee; and (iv) if any such assignment occurs after the issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Notes to the Borrowers (with a copy to the Administrative Agent) for cancellation (provided that such Notes
shall be deemed to be cancelled and of no further force and effect immediately upon the effectiveness of any assignment regardless of when such Notes are delivered for cancellation), if so requested by the assignee and/or assigning Lender the Borrowers shall issue and deliver new Notes, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new outstanding Loans of the assignee and/or the assigning Lender.
(g) Participations. Any Lender may at any time grant to one or more banks or other institutions (each a “Participant”) a participating interest in its Commitment or any or all of its Loans; provided that (i) such Lender has provided prior written notice to the Borrowers, (ii) any such participation shall be in a minimum amount of $5,000,000, and, if in a greater amount, in integral multiples of $5,000,000 (or such Lender’s entire remaining Commitment) and (iii) prior to the occurrence and continuance of an Event of Default pursuant to Sections 8.01(a), (f) or (g) that has not been cured within sixty (60) calendar days, no such participation shall be granted to without the prior written consent of the Borrowers. In the event of any such grant by a Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the Obligations including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement. The voting rights of each Participant shall be limited to (i) reductions or increases in the amount, or altering the term, of the Commitment of such Participant and (ii) changes to the Maturity Date or applicable interest rate. The Borrowers agree that each Participant shall be entitled to the benefits of Section 2.10 and Section 10.04 hereof with respect to its participating interest; provided that in no event shall the Borrowers be obligated to pay to such Participant amounts greater than those the Borrowers would have been required to pay to the granting Lender in the absence of such participation; and provided, further, that the Participant shall have complied with the obligations of such sections as though such Participant were a Lender. An assignment or other transfer which is not permitted by subsection (c) above shall be given effect for purposes of this Agreement only to the extent of a participating interest which is permitted in accordance with this subsection (g). Each Lender that sells a participating interest in any Loan, Commitment or other interest to a Participant shall, as agent of the Borrowers solely for the purpose of this Section 10.06(g), record in book entries maintained by such Lender the name and the amount of the participating interest of each Participant entitled to receive payments in respect of such participating interests. Each Lender that sells a participation pursuant to this Section 10.06(g) shall, acting solely for U.S. federal income tax purposes as a non‑fiduciary agent of the Borrowers, maintain a register on which it records the name and address of each participant and the principal amounts of (and stated interest on) each participant’s participation interest with respect to the Loans (each, a “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or its other obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such Commitment, Loan or other Obligation is in registered form under Section 5f.103‑1(c) of the United States Treasury Regulations and Section 1.163‑5(b)(1) of the proposed United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
person whose name is recorded in the Participant Register as the owner of a participation with respect to the Loan for all purposes under this Agreement, notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as the Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(h) Certain Other Assignments and Participations. In addition to any other assignment or participation permitted pursuant to this Section 10.06 any Lender may assign, pledge and/or grant a security interest in all or any portion of its Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such Lender including any Federal Reserve Bank as collateral security pursuant to Regulation A and any operating circular issued by such Federal Reserve Bank; provided that (i) no Lender, as between the Borrowers and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge, and (ii) in no event shall the applicable Federal Reserve Bank, pledgee or trustee, be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder.
Section 10.07. [Reserved].
Section 10.08. Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Loans. Notwithstanding anything herein or implied by law to the contrary, the agreements of the Borrowers set forth in Section 2.09, Section 2.10 Article 9, Section 10.02, Section 10.03, Section 10.04 and Section 10.21 and the agreements of Lenders set forth in Section 2.10 and Section 9.07 shall survive the payment in full of the Loans and all other Obligations, and the termination hereof.
Section 10.09. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the exercise of any power, right, remedy or privilege hereunder or under any other Finance Document shall impair such power, right, remedy or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right, remedy or privilege preclude other or further exercise thereof or of any other power, right, remedy or privilege. The powers, rights, remedies and privileges given to each Agent and each Lender hereby are cumulative and shall be in addition to and independent of all powers, rights, remedies and privileges existing by virtue of any statute or rule of law or in any of the other Finance Documents. Any forbearance or failure to exercise, and any delay in exercising, any power, right, remedy or privilege hereunder shall not impair any such power, right, remedy or privilege or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such power, right, remedy or privilege.
Section 10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Borrower or any other person or against or in payment of any or all of the Obligations. To the extent that any Borrower makes a payment or payments to the Administrative Agent or the Lenders (or to the Administrative Agent, on behalf of the Lenders), or any Agent or Lender enforces any security interests or exercises any right of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state, provincial or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
Section 10.11. Severability. In case any provision in or obligation hereunder or under any other Finance Document shall be invalid, illegal or unenforceable in any jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability, which shall not affect any other provisions hereof or the validity, legality or enforceability of such provision in any other jurisdiction. If any provision of this Agreement shall conflict with or be inconsistent with any provision of any other Finance Documents, then the terms, conditions and provisions of this Agreement shall prevail.
Section 10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of the Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Finance Document, and no action taken by the Lenders pursuant hereto or thereto, shall be deemed to constitute the Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent indebtedness, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
Section 10.13. Headings. Article and Section headings used herein and in the other Finance Documents are included for convenience of reference only and shall not affect the interpretation of or be given any substantive effect under this Agreement or any other Finance Document.
Section 10.14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS AND CAUSES OF ACTION SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST‑JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 10.15. CONSENT TO JURISDICTION.
(a) SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER FINANCE DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED
STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, THE BORROWERS, FOR THEMSELVES AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.01; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH BORROWER IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY FINANCE DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.
(b) The Borrowers hereby appoint and consent to KKR as its agent upon whom process or demands may be served in any action arising out of or based on this Agreement or the transactions contemplated hereby. The Borrowers may at any time and from time to time vary or terminate the appointment of such process agent or appoint an additional process agent; provided that the Borrowers will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the Borrowers in respect of this Agreement may be served. If at any time the Borrowers shall fail to maintain any required office or agency in the Borough of Manhattan, The City of New York, or shall fail to furnish the Agents with the address thereof, notices and demands may be served on a Borrower by mailing a copy thereof by registered or certified mail or by nationally recognized overnight courier, postage prepaid, to such Borrower at its address specified herein.
Section 10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO IRREVOCABLY WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL IN ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER FINANCE DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THE FINANCE DOCUMENTS OR THE LENDER/BORROWER RELATIONSHIPS THAT ARE BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL‑ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THE FINANCE DOCUMENTS, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY
HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER FINANCE DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 10.17. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under Applicable Law shall not exceed the Maximum Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Maximum Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Maximum Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Obligations are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrowers shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Maximum Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of the Lenders and the Borrowers to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Maximum Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrowers.
Section 10.18. Effectiveness; Counterparts. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by the Borrowers and the Administrative Agent of written notification of such execution and authorization of delivery thereof. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same
instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 10.19. PATRIOT Act. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower in accordance with the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
Section 10.20. Electronic Execution. Other than with respect to a Borrower incorporated under the laws of Hong Kong, the words “execution”, “signed”, “signature”, and words of like import in any Finance Document or Assignment Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper‑based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section 10.21. No Fiduciary Duty. Each Agent, Lender and their Affiliates (collectively, solely for purposes of this Section 10.21, the “Lenders”), may have economic interests that conflict with those of the Borrowers, their equity holders and/or their Affiliates. The Borrowers acknowledge and agree, and acknowledge their respective Affiliates’ understandings, that nothing in the Finance Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and the Borrowers, their equity holders or its Affiliates, on the other. The Borrowers acknowledge and agree, and acknowledge their respective equity holders and Affiliates’ understandings, that (a) each of the transactions contemplated by the Finance Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s‑length commercial transactions between the Lenders, on the one hand, and the Borrowers, on the other, and (b) in connection therewith and with the process leading thereto, (i) no Lender has assumed an advisory or fiduciary responsibility in favor of any Borrower, its equity holders or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Borrower, its equity holders or its Affiliates on other matters) or any other obligation to the Borrowers except the obligations expressly set forth in the Finance Documents and (ii) each Lender is acting solely as principal and not as the agent or fiduciary of any Borrower, its management, equity holders, creditors or any other person. The Borrowers acknowledge and agree that they have consulted their own legal, accounting, regulatory, tax and other
financial advisors to the extent it deemed appropriate, that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto, and is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated by the Finance Documents. The Borrowers agree that they will not claim that any Lender has rendered advisory services of any nature or respect or owes a fiduciary or similar duty to any Borrower, in connection with such transaction or the process leading thereto.
Section 10.22. Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such person became a Lender party hereto, to, and (y) covenants, from the date such person became a Lender party hereto to the date such person ceases being a Lender party hereto that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84‑14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95‑60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90‑1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91‑38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96‑23 (a class exemption for certain transactions determined by in‑house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments and this Agreement,
(iii) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84‑14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the letters of credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments and this Agreement satisfies the requirements of subsections (b) through (g) of Part I of PTE 84‑14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84‑14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments and this Agreement, or
such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, the Borrower and such Lender.
(b) In addition, unless either (1) sub‑clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such person became a Lender party hereto, to, and (y) covenants, from the date such person became a Lender party hereto to the date such person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other person, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments and this Agreement (including in connection with the reservation of exercise or any rights by the Administrative Agent under this Agreement, any Finance Document or any documents related hereto or thereto).
Section 10.23. Judgment Currency.
(a) The Borrowers’ obligations hereunder and under the other Finance Documents to make payments in Dollars (for purposes herein, the “Obligation Currency”) shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Finance Party entitled thereto of the full amount of the Obligation Currency expressed to be payable to it under this Agreement or the other Finance Documents. If for the purpose of obtaining or enforcing judgment against the Borrowers in any court or in any jurisdiction, it becomes necessary to convert an amount due hereunder into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the “Judgment Currency”), the rate of exchange shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the Obligation Currency with the Judgment Currency on the Business Day preceding that on which the final judgment is given (such day being hereinafter referred to as the “Judgment Currency Conversion Date”).
(b) If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due, the Borrowers jointly and severally covenant and agree to pay, or cause to be paid, and each jointly and severally indemnifies the Finance Parties for such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency that could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate or exchange prevailing on the Judgment Currency Conversion Date. The foregoing indemnity shall constitute a separate and independent obligation of the Borrowers and shall survive any termination of this Agreement and the other Finance Documents and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.
(c) For purposes of determining any rate of exchange for this Section 10.23, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
Section 10.24. Confidentiality. The Administrative Agent and each Lender will maintain the confidentiality of all Confidential Information to protect Confidential Information delivered to such person; provided that such person may deliver or disclose Confidential Information to: (i) such person’s directors, trustees, officers, employees, agents, attorneys and Affiliates who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 10.24 and to the extent such disclosure is reasonably required for the administration of this Agreement and the other Finance Documents, the matters contemplated hereby or the investment represented by the Loans; (ii) such person’s legal advisors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 10.24 and to the extent such disclosure is reasonably required for the administration of this Agreement, the matters contemplated hereby or the investment represented by the Loans; (iii) any other Lender, or any of the other parties to this Agreement or the other Finance Documents; (iv) any federal, provincial or state or other regulatory, governmental or judicial authority having jurisdiction over such person in the course of any routine examination by such authority, or as otherwise required by Applicable Law or in connection with any legal proceeding; (v) any other person with the consent of the Borrowers; (vi) any other person to which such delivery or disclosure may be necessary or appropriate (A) to effect compliance with any law, rule, regulation or order applicable to such person, (B) in response to any subpoena or other legal process upon prior notice to the Borrowers (unless prohibited by Applicable Law, rule, order or decree or other requirement having the force of law), (C) in connection with any litigation to which such person is a party upon prior notice to the Borrowers (unless prohibited by Applicable Law, rule, order or decree or other requirement having the force of law), (D) to the extent such person may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies with respect to the Obligations, this Agreement or the other Finance Documents or (E) in the Administrative Agent’s performance of its obligations under this Agreement or other Finance Documents; and (vii) any person (other than to any Competitor, except to the extent they are a permitted assign in accordance with the provisions hereof) of the type that would be, to such person’s knowledge, permitted to acquire Loans in accordance with the requirements of Section 10.06 to which such person sells or offers to sell any such Loan or any part thereof (if such person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 10.24); provided that notwithstanding anything in the contrary contained in any Finance Document, disclosure to (i) professional advisers, insurers, insurance brokers and service providers of any Lender (including any hedging or derivative counterparties) and (ii) any rating agency or direct or indirect provider of credit protection to a permitted party (or its brokers) (it being understood that such Confidential Information shall only be shared with such rating agency in connection with rating the Borrowers or its subsidiaries or the transactions contemplated under the Facility and such rating shall be treated as Confidential Information in accordance with the terms of this Section 10.24), in each case, shall require the prior written consent of the Borrowers, and such persons shall owe duties of confidentiality to the Borrowers. Each Lender agrees that it shall use the Confidential Information for the sole purpose of making an investment in the Loans or administering
its investment in the Loans; and that the Administrative Agent shall neither be required nor authorized to disclose to the Lenders any Confidential Information in violation of this Section 10.24. In the event of any required disclosure of the Confidential Information by such Lender, such Lender agrees to use reasonable efforts to protect the confidentiality of the Confidential Information.
Section 10.25. Acknowledgement and Consent to Bail‑In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Finance Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Finance Document, to the extent such liability is unsecured, may be subject to the Write‑down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write‑down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail‑in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Finance Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write‑down and Conversion Powers of the applicable Resolution Authority.
Section 10.26. General Partner acting on behalf of Limited Partnership. All references in this Agreement to a Borrower who is a limited partnership shall be construed as to being done by the general partner of such Borrower acting in its capacity as general partner of the applicable Borrower as the context of any provision may require.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
| | BORROWER REPRESENTATIVE: |
| | |
| | K‑PEC LIQUIDITY LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| |
| Name:Michael Whyte |
| |
| Title: Chief Operating Officer |
| | | |
| | BORROWERS: |
| | |
| | K-PEC CENTURY AGGREGATOR GP LLC |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC PROOF BLOCKER GP LLC |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC ALLIUM AGGREGATOR GP LLC |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
[Signature Page to Revolving Credit Agreement]
| | K-PEC ATHENA AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC TIGRA AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC MODENA AGGREGATOR GP LLC |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC MOUNTY AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
[Signature Page to Revolving Credit Agreement]
| | K-PEC INCEPTION AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC CASTLE AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC HIGHLANDER AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC AZUR AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
[Signature Page to Revolving Credit Agreement]
| | K-PEC EQUINOX AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC SANSIBAR AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC PEBBLE AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC GAME CHANGER AGGREGATOR GP LLC |
| | | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
[Signature Page to Revolving Credit Agreement]
| | K-PEC POSEIDON AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC DRIVE 2024 AGGREGATOR GP LIMITED |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC RAINBOW AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC SHOW AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
[Signature Page to Revolving Credit Agreement]
| | K-PEC BANFF AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC GEOLOGIST AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC DANCE AGGREGATOR GP LIMITED |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC JUNE AGGREGATOR GP LLC |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
[Signature Page to Revolving Credit Agreement]
| | K-PEC ABACUS AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC RISE AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
| | | |
| | K-PEC ODYSSEY AGGREGATOR GP L.P. |
| | |
| | By K-PEC ODYSSEY LLC, its general partner |
| | |
| | By: | /s/ Michael Whyte |
| | Name: | Michael Whyte |
| | Title: | Chief Operating Officer |
[Signature Page to Revolving Credit Agreement]
BORROWER:
SIGNED as a deed by Michael Whyte, | )
| |
| Director, and Jackson Yeh, | )
| /s/ Michael Whyte |
| Director/Secretary duly authorised for and on | )
| Name: Michael Whyte |
| behalf of K-PEC AGGREGATOR HK GP | )
| Title: Director |
| LIMITED in the presence of: | )
| |
| | )
| |
| | )
| /s/ Jackson Yeh |
| | )
| Name: Jackson Yeh |
| | )
| Title: Director |
| | )
| |
| | )
| |
[Signature Page to Revolving Credit Agreement]
| | SUMITOMO MITSUI BANKING CORPORATION, |
| | as Administrative Agent and a Lender |
| | | |
| | By: | /s/ Dominic Goh |
| | | Name: Dominic Goh |
| | | Title: Managing Director |
[Signature Page to Revolving Credit Agreement]
