Ninth Amendment to the Revolving Credit and Security Agreement, dated as of March 20, 2025, among ARCC FB Funding LLC, as borrower, the lenders from time to time parties thereto, BNP Paribas, as administrative agent and lender, Ares Capital Corporation, as equityholder and servicer, and U.S. Bank Trust Company National Association, as collateral agent
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EX-10.1 2 arcc-bnpfacility9thamendme.htm EX-10.1 Document
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Exhibit 10.1
EXECUTION VERSION
This EIGHTHNINTH AMENDMENT TO THE REVOLVING CREDIT AND SECURITY AGREEMENT (this “Amendment”), dated as of July 25March 20, 20242025 (the “Amendment Date”), is entered into by and among ARCC FB FUNDING LLC, a Delaware limited liability company, as the borrower (the “Borrower”), the LENDERS party to the Revolving Credit Agreement, BNP PARIBAS, as the administrative agent (the “Administrative Agent”), ARES CAPITAL CORPORATION, a Maryland corporation, as the equityholder (in such capacity, the “Equityholder”), ARES CAPITAL CORPORATION, a Maryland corporation, as the servicer (in such capacity, the “Servicer”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as successor in interest to U.S. Bank National Association, as collateral agent (the “Collateral Agent”).
WHEREAS, the Borrower, the lenders from time to time party thereto, the Administrative Agent, the Equityholder, the Servicer and the Collateral Agent are party to the Revolving Credit and Security Agreement, dated as of June 11, 2020 (as amended from time to time prior to the date hereof, the “Revolving Credit Agreement”);
WHEREAS, the Relevant Recipients (as defined in Appendix A hereto) have received from the Borrower the transaction summary as set out in Schedule 10 in Appendix A hereto in accordance with Article 7(1)(c) of the Securitisation Regulation; and
WHEREAS, the parties hereto desire to amend the Revolving Credit Agreement, in accordance with Section 13.01(b) of the Revolving Credit Agreement subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing premises and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. Terms used but not defined herein have the respective meanings given to such terms in the Revolving Credit Agreement.
ARTICLE II
Amendments to Revolving Credit Agreement
SECTION 2.1. As of the Amendment Date, the Revolving Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth on the pages attached as Appendix A hereto.
USActive 61461992.161461992.3
ARTICLE III
Representations and Warranties
SECTION 3.1. The Borrower and the Equityholder hereby represent and warrant to the Administrative Agent and the Lender that, as of the Amendment Date, (i) no Default, Event of Default, Potential Servicer Removal Event or Servicer Removal Event has occurred and is continuing or shall occur on the Amendment Date after giving effect to this Amendment and the transaction contemplated hereby and (ii) the representations and warranties of the Borrower, the Servicer and the Equityholder contained in Sections 4.01, 4.02 and 4.03 of the Revolving Credit Agreement are true and correct in all material respects on and as of the Amendment Date (other than any representation and warranty that is made as of a specific date); provided that, to the extent that any such representation and warranty is otherwise qualified by materiality or Material Adverse Effect, such representation and warranty shall be true and correct in all respects.
ARTICLE IV
Conditions Precedent
SECTION 4.1. This Amendment will be effective upon the satisfaction of each of the following conditions:
(a)the execution and delivery of this Amendment by the Borrower, the Lenders, the Administrative Agent, the Equityholder and the Servicer;
(b)all fees due and owing to the Administrative Agent and each Lender on or prior to the Amendment Date have been paid;
(c)all fees of counsel to the Administrative Agent invoiced prior to the Amendment Date have been paid; and
(d)the Administrative Agent shall have received the executed legal opinion of Latham & Watkins LLP, counsel to the Borrower, in form and substance acceptable to the Administrative Agent in its reasonable discretion and addressed to the Administrative Agent and each Lender.
ARTICLE V
Miscellaneous
SECTION 5.1. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER FACILITY DOCUMENT (EXCEPT, AS TO ANY OTHER FACILITY DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 5.2. Severability Clause. In case any provision in this Amendment is deemed to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 5.3. Ratification. Except as expressly amended hereby, the Revolving Credit Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof will remain in full force and effect. All obligations under the Revolving Credit Agreement (as such obligations may be modified by this Amendment on the Amendment Date) shall continue to be valid, enforceable, and in full force and effect and shall not be impaired, in any respect, by the effectiveness of this Amendment. This Amendment shall form a part of the Revolving Credit Agreement for all purposes and reference to this specific Amendment need not be made in the Revolving Credit Agreement or any other instrument or document executed in connection therewith, or in any certificate, letter or communication issued or made pursuant to or with respect to the Revolving Credit Agreement, any reference in any of such items to the Revolving Credit Agreement being sufficient to refer to the Revolving Credit Agreement as amended hereby. On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a “Facility Document” and each reference in the Revolving Credit Agreement to “herein”, “hereunder” or words of like import referring to the Revolving Credit Agreement and each reference in any other Facility Document to “Revolving Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the “Revolving Credit Agreement” shall mean and be a reference to the Revolving Credit Agreement as amended hereby. The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of or operate as a waiver of any right, power or remedy under the Revolving Credit Agreement or any of the other Facility Documents. This Amendment shall not constitute a novation of the obligations and liabilities of the parties under the Revolving Credit Agreement or the other Facility Documents as in effect on or prior to the Amendment Date.
SECTION 5.4. Counterparts. The parties hereto may sign one or more copies of this Amendment in counterparts, all of which together constitute one and the same agreement. Delivery of an executed signature page of this Amendment by facsimile or email transmission (including electronic signature pursuant to and in accordance with the Revolving Credit Agreement) is effective as delivery of a manually executed counterpart hereof. This Amendment shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of such party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature; or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, “Signature Law”), in each case to the extent applicable; provided that no electronic signatures may be affixed through the use of a third-party service provider. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
SECTION 5.5. Headings. The headings of the Articles and Sections in this Amendment are for convenience of reference only and are not deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 5.6. Direction to Execute. The Administrative Agent hereby authorizes and directs the Collateral Agent to execute this Amendment.
SECTION 5.7 Consent to Amendment to Constituent Documents. The Administrative Agent and the Required Lenders each hereby consent, for purposes of Section 5.03(c) of the Revolving Credit Agreement, to the Borrower’s request for permission to amend Sections 2, 3 and/or 4 of its limited liability company agreement on or after the date hereof solely for the purpose of setting forth the correct addresses of the Borrower and its registered agent as set forth in the Revolving Credit Agreement (after giving effect to this Amendment). In connection therewith, the Borrower hereby covenants and agrees to deliver to the Administrative Agent a copy of such amendment, certified to be a true and correct copy thereof by a Responsible Officer of the Borrower, promptly following the execution thereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the Amendment Date.
BORROWER: | ||||||||
ARCC FB FUNDING LLC | ||||||||
By: | /s/ Scott Lem | |||||||
Name: | Scott Lem | |||||||
Title: | Authorized Signatory |
[Signature Page to EighthNinth Amendment to Revolving Credit and Security Agreement]
EQUITYHOLDER: | ||||||||
ARES CAPITAL CORPORATION, | ||||||||
as Equityholder | ||||||||
By: | /s/ Ian Fitzgerald | |||||||
Name: | Ian Fitzgerald | |||||||
Title: | Authorized Signatory |
SERVICER: | ||||||||
ARES CAPITAL CORPORATION, | ||||||||
as Servicer | ||||||||
By: | /s/ Ian Fitzgerald | |||||||
Name: | Ian Fitzgerald | |||||||
Title: | Authorized Signatory |
[Signature Page to EighthNinth Amendment to Revolving Credit and Security Agreement]
ADMINISTRATIVE AGENT: | ||||||||
BNP PARIBAS, | ||||||||
as Administrative Agent | ||||||||
By: | /s/ Sohaib Naim | |||||||
Name: | Sohaib Naim | |||||||
Title: | Managing Director | |||||||
By: | /s/ Julien Flacassier | |||||||
Name: | Julien Flacassier | |||||||
Title: | Director | |||||||
LENDER: | ||||||||
BNP PARIBAS, | ||||||||
as Lender | ||||||||
By: | /s/ Sohaib Naim | |||||||
Name: | Sohaib Naim | |||||||
Title: | Managing Director | |||||||
By: | /s/ Julien Flacassier | |||||||
Name: | Julien Flacassier | |||||||
Title: | Director | |||||||
[Signature Page to EighthNinth Amendment to Revolving Credit and Security Agreement]
STATE STREET BANK AND TRUST COMPANY, as a Lender | ||||||||
By: | /s/ Jiaqi Wei | |||||||
Name: | Jiaqi Wei | |||||||
Title: | Vice President |
[Signature Page to EighthNinth Amendment to Revolving Credit and Security Agreement]
STANDARD CHARTERED BANK, as a Lender | ||||||||
By: | /s/ Gargi Patel | |||||||
Name: | Gargi Patel | |||||||
Title: | Managing Director |
[Signature Page to EighthNinth Amendment to Revolving Credit and Security Agreement]
WEBSTER BANK, N.A., as a Lender | ||||||||
By: | /s/ James Gelwicks | |||||||
Name: | James Gelwicks | |||||||
Title: | Senior Managing Director |
[Signature Page to EighthNinth Amendment to Revolving Credit and Security Agreement]
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent | ||||||||
By: | /s/ Ralph J. Creasia, Jr. | |||||||
Name: | Ralph J. Creasia, Jr. | |||||||
Title: | Senior Vice President |
[Signature Page to EighthNinth Amendment to Revolving Credit and Security Agreement]
APPENDIX A
[Revolving Credit Agreement]
Conformed through EighthNinth Amendment, dated July 25March 20, 20242025
REVOLVING CREDIT AND SECURITY AGREEMENT
among
ARCC FB FUNDING LLC,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
BNP PARIBAS,
as Administrative Agent,
ARES CAPITAL CORPORATION,
as Equityholder,
ARES CAPITAL CORPORATION,
as Servicer, and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Collateral Agent
Dated as of June 11, 2020
THIS AGREEMENT PROVIDES FOR AN UNCOMMITTED FACILITY. ALL ADVANCES ARE DISCRETIONARY ON THE PART OF THE LENDERS IN THEIR SOLE AND ABSOLUTE DISCRETION.
USActive 61462111.161462111.3
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS
SECTION 1.01 Definitions | 1 | ||||
“Fourth Amendment Effective Date” means January 9, 2023 | 27 | ||||
SECTION 1.02 Rules of Construction | 56 | ||||
SECTION 1.03 Computation of Time Periods | 57 | ||||
SECTION 1.04 Collateral Value Calculation Procedures | 57 |
ARTICLE II ADVANCES
SECTION 2.01 Revolving Credit Facility | 59 | ||||
SECTION 2.02 Requests for Collateral Loan Approval | 59 | ||||
SECTION 2.03 Making of the Advances | 61 | ||||
SECTION 2.04 Evidence of Indebtedness | 62 | ||||
SECTION 2.05 Payment of Principal and Interest | 62 | ||||
SECTION 2.06 Prepayment of Advances | 63 | ||||
(a) Optional Prepayments | 63 | ||||
(b) Mandatory Prepayments | 63 | ||||
(c) Additional Prepayment Provisions | 63 | ||||
SECTION 2.07 Changes of Individual Lender Maximum Funding Amounts | 6364 | ||||
(a) Automatic Reduction and Termination | 6364 | ||||
(b) Optional Reductions | 64 | ||||
(c) Effect of Termination or Reduction | 64 | ||||
SECTION 2.08 Maximum Lawful Rate | 64 | ||||
SECTION 2.09 Several Obligations | 64 | ||||
SECTION 2.10 Increased Costs | 6465 | ||||
(a) Increased Costs Generally | 6465 | ||||
(b) Capital Requirements | 65 | ||||
(c) Certificates from Lenders | 65 | ||||
(d) Delay in Requests | 6566 | ||||
(e) Lending Office | 66 | ||||
SECTION 2.11 Compensation; Breakage Amounts | 66 | ||||
SECTION 2.12 Inability to Determine Rates | 66 | ||||
SECTION 2.13 Rescission or Return of Payments | 67 | ||||
SECTION 2.14 Post-Default Interest | 67 | ||||
SECTION 2.15 Payments Generally | 67 | ||||
SECTION 2.16 [Reserved] | 6869 | ||||
SECTION 2.17 Defaulting Lenders | 6869 | ||||
SECTION 2.18 Benchmark Replacement Setting | 6970 |
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ARTICLE III CONDITIONS PRECEDENT
SECTION 3.01 Conditions Precedent to Initial Advance | 74 | ||||
SECTION 3.02 Conditions Precedent to Each Advance | 76 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower | 77 | ||||
(a) Due Organization | 77 | ||||
(b) Due Qualification | 77 | ||||
(c) Due Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability | 77 | ||||
(d) [ | 77 | ||||
(e) Non-Contravention | 77 | ||||
(f) Governmental Authorizations; Private Authorizations; Governmental Filing | 7778 | ||||
(g) Compliance with Agreements, Laws, Etc. | 78 | ||||
(h) Location | 78 | ||||
(i) Investment Company Act | 78 | ||||
(j) ERISA | 78 | ||||
(k) Taxes | 78 | ||||
(l) Filings and Stamp Taxes | 78 | ||||
(m) Plan Assets | 7879 | ||||
(n) Solvency | 7879 | ||||
(o) Representations Relating to the Collateral | 79 | ||||
(p) Eligibility | 80 | ||||
(q) Anti-Corruption Laws and Anti-Terrorism Laws | 80 | ||||
(r) Sanctions | 80 | ||||
(s) No Default | 81 | ||||
(t) No Proceedings | 81 | ||||
(u) Information | 81 | ||||
(v) Procedures | 81 | ||||
SECTION 4.02 Representations and Warranties of the Servicer | 81 | ||||
(a) Due Organization | 81 | ||||
(b) Due Qualification | 81 | ||||
(c) Due Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability | 8182 | ||||
(d) [ | 82 | ||||
(e) Non-Contravention | 82 | ||||
(f) Governmental Authorizations; Private Authorizations; Governmental Filing | 82 | ||||
(g) Compliance with Agreements, Laws, Etc. | 82 | ||||
(h) [ | 82 | ||||
(i) Taxes | 82 | ||||
(j) [ | 8283 | ||||
(k) Anti-Corruption Laws and Anti-Terrorism Laws | 83 | ||||
(l) Sanctions | 83 | ||||
(m) [ | 83 |
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(n) No Proceedings | 83 | ||||
(o) Information | 83 | ||||
(p) Procedures | 83 | ||||
SECTION 4.03 Representations and Warranties of the Equityholder | 8384 | ||||
(a) Due Organization | 8384 | ||||
(b) Due Qualification | 84 | ||||
(c) Due Authorization; Execution and Delivery; Legal, Valid and Binding; Enforceability | 84 | ||||
(d) Investment Company Act | 84 | ||||
(e) Non-Contravention | 84 | ||||
(f) Governmental Authorizations; Private Authorizations; Governmental Filing | 84 | ||||
(g) Compliance with Agreements, Laws, Etc. | 8485 | ||||
(h) [ | 85 | ||||
(i) Taxes | 85 | ||||
(j) Anti-Corruption Laws and Anti-Terrorism Laws | 85 | ||||
(k) Sanctions | 85 | ||||
(l) No Default | 85 | ||||
(m) No Proceedings | 85 | ||||
(n) Information | 85 |
ARTICLE V COVENANTS
SECTION 5.01 Affirmative Covenants of the Borrower | 86 | ||||
(a) Compliance with Agreements, Laws, Etc. | 86 | ||||
(b) Enforcement | 86 | ||||
(c) Further Assurances | 8687 | ||||
(d) Financial Statements; Other Information | 87 | ||||
(e) Access to Records and Documents | 89 | ||||
(f) Use of Proceeds | 89 | ||||
(g) Information and Reports | 90 | ||||
(h) Opinions as to Collateral | 90 | ||||
(i) No Other Business | 90 | ||||
(j) Tax Matters | 90 | ||||
(k) Compliance with Legal Opinions | 9091 | ||||
SECTION 5.02 Covenants of the Servicer | 91 | ||||
(a) Compliance with Agreements, Laws, Etc. | 91 | ||||
(b) Enforcement | 91 | ||||
(c) Further Assurances | 91 | ||||
(d) Other Information | 91 | ||||
(e) Access to Records and Documents | 92 | ||||
(f) Information and Reports | 93 | ||||
(g) Collections | 93 |
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(h) Priority of Payments | 93 | ||||
(i) Anti-Corruption Laws and Sanctions | 93 | ||||
SECTION 5.03 Negative Covenants of the Borrower | 9394 | ||||
(a) Restrictive Agreements | 9394 | ||||
(b) Liquidation; Merger; Sale of Collateral | 94 | ||||
(c) Amendments to Constituent Documents, | 94 | ||||
(d) ERISA | 94 | ||||
(e) Liens | 94 | ||||
(f) Margin Requirements; Covered Transactions | 94 | ||||
(g) Changes to Filing Information; Change of Location of Underlying Instruments | 94 | ||||
(h) Transactions with Affiliates | 95 | ||||
(i) Investment Company Restriction | 95 | ||||
(j) Anti-Corruption and Sanctions | 95 | ||||
(k) [ | 95 | ||||
(l) Indebtedness; Guarantees; Securities; Other Assets | 95 | ||||
(m) Validity of this Agreement | 9596 | ||||
(n) Subsidiaries | 96 | ||||
(o) Name | 96 | ||||
(p) Employees | 96 | ||||
(q) Non-Petition | 96 | ||||
(r) Certificated Securities | 96 | ||||
SECTION 5.04 Covenants of the Equityholder | 96 | ||||
(a) Compliance with Agreements, Laws, Etc. | 96 | ||||
(b) Other Information | 97 | ||||
(c) Anti-Corruption Laws and Sanctions | 97 | ||||
(d) Separateness | 97 | ||||
(e) Liens | 97 | ||||
SECTION 5.05 Certain Undertakings Relating to Separateness | 97 |
ARTICLE VI EVENTS OF DEFAULTS
SECTION 6.01 Events of Default | 9798 | ||||
SECTION 6.02 OC Ratio Breach Cures | 101 |
ARTICLE VII PLEDGE OF COLLATERAL; RIGHTS OF THE COLLATERAL AGENT
SECTION 7.01 Grant of Security | 101 | ||||
SECTION 7.02 Release of Security Interest | 102 | ||||
SECTION 7.03 Rights and Remedies | 103 | ||||
SECTION 7.04 Remedies Cumulative | 105106 | ||||
SECTION 7.05 Related Documents | 106 | ||||
SECTION 7.06 Borrower Remains Liable | 106 | ||||
SECTION 7.07 Protection of Collateral | 106107 |
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ARTICLE VIII ACCOUNTS, ACCOUNTINGS AND RELEASES
SECTION 8.01 Collection of Money | 107 | ||||
SECTION 8.02 Collateral Account and Collection Account | 108 | ||||
SECTION 8.03 Payment Account | 109 | ||||
SECTION 8.04 The Revolving Reserve Account; Fundings | 109 | ||||
SECTION 8.05 [Reserved] | 110 | ||||
SECTION 8.06 Reinvestment of Funds in Covered Accounts; Reports by Collateral Agent | 110 | ||||
SECTION 8.07 Accountings | 111 | ||||
(a) [ | 111 | ||||
(b) Payment Date Accounting | 111 | ||||
(c) Failure to Provide Accounting | 112 | ||||
SECTION 8.08 Release of Collateral | 112 | ||||
SECTION 8.09 Reports by Independent Accountants | 113 |
ARTICLE IX APPLICATION OF MONIES
SECTION 9.01 Disbursements of Monies from Payment Account | 114 | ||||
ARTICLE X SALE OF COLLATERAL LOANS;
PURCHASE OF ADDITIONAL COLLATERAL LOANS
SECTION 10.01 Sales of Collateral Loans | 118 | ||||
(a) Discretionary Sales of Collateral Loans | 118 | ||||
(b) Ineligible Collateral Loans | 119 | ||||
(c) Sales of Equity Securities | 119 | ||||
SECTION 10.02 Purchase of Additional Collateral Loans | 122123 | ||||
SECTION 10.03 Conditions Applicable to All Sale and Purchase Transactions | 123 | ||||
SECTION 10.04 Additional Equity Contributions | 124 |
ARTICLE XI ADMINISTRATION AND SERVICING OF CONTRACTS
SECTION 11.01 Appointment and Designation of the Servicer | 124 | ||||
(a) Initial Servicer | 124 | ||||
(b) Servicer Removal Notice | 124125 | ||||
(c) Appointment of Replacement Servicer | 125 | ||||
(d) Liabilities and Obligations of Replacement Servicer | 125 | ||||
(e) Subcontracts | 125126 | ||||
SECTION 11.02 Duties of the Servicer | 126 | ||||
(a) Duties | 126 | ||||
SECTION 11.03 Authorization of the Servicer | 128 | ||||
SECTION 11.04 Collection Efforts, Modification of Collateral | 129 | ||||
SECTION 11.05 Servicer Compensation and Expenses | 129 | ||||
SECTION 11.06 The Servicer Not to Resign | 129 |
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ARTICLE XI THE AGENTS
SECTION 12.01 Authorization and Action | 129130 | ||||
SECTION 12.02 Delegation of Duties | 131 | ||||
SECTION 12.03 Agents' Reliance, Etc. | 131 | ||||
SECTION 12.04 Indemnification | 133134 | ||||
SECTION 12.05 Successor Agents | 134 | ||||
SECTION 12.06 The Collateral Agent | 134135 |
ARTICLE XIII MISCELLANEOUS
SECTION 13.01 No Waiver; Modifications in Writing | 137 | ||||
SECTION 13.02 Notices, Etc | 138 | ||||
SECTION 13.03 Taxes | 139 | ||||
SECTION 13.04 Costs and Expenses; Indemnification | 143 | ||||
SECTION 13.05 Execution in Counterparts | 144145 | ||||
SECTION 13.06 Assignability | 145 | ||||
SECTION 13.07 Governing Law | 147 | ||||
SECTION 13.08 Severability of Provisions | 147 | ||||
SECTION 13.09 Confidentiality | 147 | ||||
SECTION 13.10 Merger | 148 | ||||
SECTION 13.11 Survival | 148 | ||||
SECTION 13.12 Submission to Jurisdiction; Waivers; Etc. | 148149 | ||||
SECTION 13.13 Waiver of Jury Trial | 150 | ||||
SECTION 13.14 Right of Setoff; Payments Pro Rata | 150 | ||||
SECTION 13.15 PATRIOT Act Notice | 150151 | ||||
SECTION 13.16 Legal Holidays | 151 | ||||
SECTION 13.17 Non-Petition | 151 | ||||
SECTION 13.18 Waiver of Setoff | 151152 | ||||
SECTION 13.19 Collateral Agent Execution and Delivery | 151152 | ||||
SECTION 13.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 152 | ||||
SECTION 13.21 WAIVER OF SOVEREIGN IMMUNITY | 152 | ||||
SECTION 13.22 Securitisation Regulation Requirements | 152153 | ||||
SECTION 13.23 Adequacy of Monetary Damages Against the Lenders | 154 | ||||
SECTION 13.24 EU Transparency Requirements | 154 |
SCHEDULES
SCHEDULE 1 | Individual Lender Maximum Funding Amounts and Percentages | |||||||
SCHEDULE 2 | Prohibited Loans | |||||||
SCHEDULE 3 | Initial Collateral Loans | |||||||
SCHEDULE 4 | Industry Classifications | |||||||
SCHEDULE 5 | Notice Information |
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any particular provision hereof to any such Affected Person is otherwise expressly excluded herein).
“Affiliate” means, in respect of a referenced Person at any time, another Person Controlling, Controlled by or under common Control with such referenced Person but which shall not, with respect to the Borrower, include the Obligors under any Collateral Loan; provided that (a) an Obligor will not be considered an “Affiliate” of any other Obligor solely due to the fact that each such Obligor is under the control of the same financial sponsor and (b) Obligors in respect of Collateral Loans shall be deemed not to be “Affiliates” if they have distinct corporate family ratings and/or distinct issuer credit ratings; provided that, for the purposes of Section 5.03(h), Section 10.01(a) and Section 10.03 of this Agreement, the term “Affiliate” shall not include any Excluded Affiliate.
“Agent” or “Agents” means the Administrative Agent and the Collateral Agent, collectively or individually, as the context requires.
“Aggregate Adjusted Collateral Balance” means, as of any date of determination, an amount equal to the sum of the Dollar Equivalent of the Adjusted Principal Balances of all Collateral Loans in the Collateral (including each potential Collateral Loan that the Borrower has entered into a binding commitment to purchase that has not yet settled) on such date, after giving effect to all Collateral Loans added to and removed from the Collateral on such date.
“Aggregate Net Collateral Balance” means, as of any date of determination, the Aggregate Adjusted Collateral Balance minus the Excess Concentration Amount, in each case, as of such date of determination.
“Aggregate Principal Balance” means, when used with respect to all or a portion of the Collateral Loans, the sum of the Principal Balances of all or of such portion of such Collateral Loans.
“Agreement” means this Revolving Credit and Security Agreement.
“Applicable Law” means, for any Person, any Law of any Governmental Authority, including all federal and state banking or securities laws, to which the Person in question is subject or by which it or any of its assets or properties are bound.
“Applicable Margin” means, as of any date of determination, a rate equal to (i) during the Reinvestment Period, 2.101.90% per annum and (ii) following the Reinvestment Period, 2.602.40% per annum.
“Appraisal” means an appraisal or valuation of a Collateral Loan that is conducted by an Approved Valuation Firm, which may be in the form of an update or reaffirmation by an Approved Valuation Firm of an appraisal or valuation previously performed by such Approved Valuation Firm or another Approved Valuation Firm.
“Approval Request” has the meaning specified in Section 2.02(a)(i) hereof.
“Approved List” has the meaning specified in Section 2.02(a)(ii) hereof.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, the United Kingdom, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Spread” means, with respect to (x) any floating rate Collateral Loan that bears interest based on Term SOFR, the current per annum rate at which it pays interest (including, without duplication, any upward or downward adjustment to such rate in accordance with the underlying instrument, including any upward or downward spread adjustment related to a change in the Benchmark) in excess of the Benchmark or (y) any floating rate Collateral Loan that bears interest based on a floating rate index other than Term SOFR (so long as the Benchmark is based on Term SOFR), the then-current base rate applicable to such floating rate Collateral Loan plus the rate at which such floating rate Collateral Loan pays interest (including, without duplication, any upward or downward adjustment to such rate in accordance with the underlying instrument, including any upward or downward spread adjustment related to a change in the applicable base rate) in excess of such base rate minus the Benchmark; provided, that the Effective Spread of any floating rate Collateral Loan will (i) be deemed to be zero, to the extent that the Borrower or the Servicer has actual knowledge that no payment of cash interest on such floating rate Collateral Loan will be made by the obligor thereof during the applicable due period, and (ii) not include any non-cash interest; provided further that for purposes of this definition, the interest rate spread shall be deemed to be, with respect to any floating rate Collateral Loan that has the Benchmark floor, (i) the stated interest rate spread (including, without duplication, any upward or downward adjustment to such rate in accordance with the underlying instrument, including any upward or downward spread adjustment related to a change in the Benchmark) plus, (ii) if positive, (a) the Benchmark floor value minus (b) the Benchmark as in effect for the current Interest Accrual Period.
“Eighth Amendment Effective Date” means July 25, 2024.
“Eligible Collateral Loan” means, as of any date of determination, a Collateral Loan that meets each of the following criteria:
(a) it is (i) a First Lien Loan, (ii) a Second Lien Loan or (iii) a First Lien Last Out Loan;
(b) if such Collateral Loan is a Class 3 Loan, it is not a Cov-Lite Loan;
“Minimum OC Coverage Test” means, as of any date, a test that is satisfied if the OC Ratio as of such date is equal to or greater than 1.00:1.00.
“Minimum Floating Spread” means 4.00%.
“Minimum Weighted Average Spread Test” means a test that is satisfied on any date of determination if the Weighted Average Floating Spread equals or exceeds the Minimum Floating Spread.
“Money” has the meaning specified in Section 1-201(24) of the UCC.
“Moody’s” means Moody’s Investors Service, Inc., together with its successors.
“Multiemployer Plan” means a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA that is sponsored by the Borrower or a member of its ERISA Group or to which the Borrower or a member of its ERISA Group is obligated to make contributions or has any liability.
“Net-Debt-to-Recurring-Revenue Ratio” means, with respect to any Collateral Loan for any period, the meaning of “Net-Debt-to-Recurring-Revenue Ratio” or any comparable term defined in the Related Documents for such Collateral Loan, and in any case that “Net-Debt-to-Recurring-Revenue Ratio” or such comparable term is not defined in such Related Documents, the ratio of (a) indebtedness of the related Obligor under such Collateral Loan and all other indebtedness of such Obligor that is senior or pari passu in right of payment to such Collateral Loan minus Unrestricted Cash and cash equivalents to (b) TTM Recurring Revenue, as calculated by the Servicer in good faith in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the Related Documents; provided that, in the event of a lack of any such information necessary to calculate the Net-Debt-to-Recurring-Revenue Ratio for any Collateral Loan, the Net-Debt-to-Recurring-Revenue Ratio for such Collateral Loan shall be a ratio calculated by the Administrative Agent in its sole discretion after consultation with the Servicer or, if agreed to by the Administrative Agent, by the Servicer in good faith in accordance with the Servicing Standard.
“Ninth Amendment Effective Date” means March 20, 2025.
“Non-accrual Loan” means any Collateral Loan as to which at any time:
(A) a default as to all or any portion of one or more payments of principal and/or interest (including a failure of a selling institution to pay amounts due and payable to the Borrower with respect to the related participation) has occurred after the earlier of (i) any grace period applicable thereto and (ii) ninety (90) Business Days, in each case, past the applicable due date; or
(B) an Insolvency Event has occurred with respect to the Obligor.
calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the Related Documents.
“Recurring Revenue Loan” means a Collateral Loan that meets each of the following criteria as of the date of acquisition by the Borrower, subject to waiver by the Administrative Agent in accordance with the definition of Eligible Collateral Loan hereto (for the avoidance of doubt, if any Collateral Loan does not meet the below listed conditions, but such failure is waived by the Administrative Agent, such Collateral Loan shall still be subject to the Advance Rates, Concentration Limitations and Revaluation Events applicable to Recurring Revenue Loans set forth herein):
(a) such Collateral Loan is a First Lien Loan;
(b) the Obligor with respect to such Collateral Loan is in a high growth industry or industry that customarily has businesses with recurring revenue models as determined by the Administrative Agent in its sole discretion or, if agreed to by the Administrative Agent, by the Servicer, in good faith in accordance with the Servicing Standard;
(c) the Obligor with respect to such Collateral Loan has generated a minimum of $15,000,000 in TTM Recurring Revenue during the most recent reporting period;
(d) the Net-Debt-to-Recurring-Revenue Ratio with respect to such Collateral Loan is less than 2.50:1.00 as of the later of the initial closing date of such Collateral Loan or the most recent Obligor Measurement Date, as applicable; and
(e) the Related Documents for such Collateral Loan require the Obligor with respect to such Collateral Loan to meet a minimum of two (2) financial covenants as determined by the Administrative Agent in its sole discretion, including a covenant for minimum liquidity and maximum ratio of principal loan amount outstanding to TTM Recurring Revenue.
“Register” has the meaning assigned to such term in Section 13.06(d).
“Regulation T,” “Regulation U” and “Regulation X” mean Regulation T, U and X, respectively, of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Reinvestment Period” means the period from and including the Closing Date to and including the earlier of (a) the date that is the third anniversary of the EighthNinth Amendment Effective Date and (b) the date of the termination of the Individual Lender Maximum Funding Amounts pursuant to Section 6.01.
“Related Documents” means, with respect to any Collateral Loan, (i) the loan or credit agreement evidencing such Collateral Loan, (ii) the principal security agreement, and (iii) if the same can be obtained without undue expense or effort, all other documents evidencing, securing, guarantying, governing or giving rise to such Collateral Loan but, for the avoidance of doubt, excluding immaterial certificates, notices and other ancillary documentation.