Credit Agreement, dated as of December 31, 2019, among Morgan Stanley Direct Lending Fund, as the company, the various financial institutions party thereto, as lenders, and CIBC Bank USA, as administrative agent

EX-10.1 2 tm201217d1_ex10-1.htm EXHIBIT 10.1

 

Exhibit 10.1 

 

EXECUTION COPY

 

  

CREDIT AGREEMENT

 

dated as of December 31, 2019

 

among

 

MORGAN STANLEY DIRECT LENDING FUND,
as the Company

 

THE VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO,

as Lenders,

 

and

 

CIBC BANK USA,

as Administrative Agent

 

 

CIBC BANK USA,
as Arranger

 

 

TABLE OF CONTENTS

 

		Page
SECTION 1	DEFINITIONS	1
1.1	Definitions	1
1.2	Other Interpretive Provisions	17
1.3	Reports	18
SECTION 2	COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES	18
2.1	Commitments	18
2.2	Loan Procedures	18
2.3	Letter of Credit Procedures	20
2.4	Commitments Several	22
2.5	Certain Conditions	22
2.6	Defaulting Lenders	22
SECTION 3	EVIDENCING OF LOANS	23
3.1	Notes	23
3.2	Recordkeeping	23
SECTION 4	INTEREST	24
4.1	Interest Rates	24
4.2	Interest Payment Dates	24
4.3	Setting and Notice of LIBOR Rates	24
4.4	Computation of Interest	24
4.5	Capitalization of Interest	24
SECTION 5	FEES	25
5.1	Non-Use Fee	25
5.2	Letter of Credit Fees	25
5.3	Administrative Agent’s Fees	26
SECTION 6	INCREASE, REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS	26
6.1	Increase, Reduction or Termination of the Revolving Commitment	26
6.2	Prepayments	27
6.3	Manner of Prepayments	28
6.4	Repayments of Loans	28
SECTION 7	MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES	28
7.1	Making of Payments	28
7.2	Application of Certain Payments	28
7.3	Due Date Extension	28
7.4	Setoff	28
7.5	Proration of Payments	28
7.6	Taxes	29
SECTION 8	INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS	32
8.1	Increased Costs	32

 

 

TABLE OF CONTENTS
(continued)

 

		Page
8.2	Basis for Determining Interest Rate Inadequate or Unfair	32
8.3	Changes in Law Rendering LIBOR Loans Unlawful	33
8.4	Funding Losses	33
8.5	Right of Lenders to Fund through Other Offices	33
8.6	Discretion of Lenders as to Manner of Funding	34
8.7	Mitigation of Circumstances; Replacement of Lenders	34
8.8	Conclusiveness of Statements; Survival of Provisions	34
8.9	Effect of Benchmark Transition Event	34
SECTION 9	REPRESENTATIONS AND WARRANTIES	37
9.1	Status	37
9.2	Authority	37
9.3	Company	38
9.4	Constituent Documents	38
9.5	Solvency	38
9.6	No Conflicts or Consents	38
9.7	Financial Condition; Full Disclosure	38
9.8	Lawsuits	38
9.9	Compliance and Taxes	38
9.10	Investor Documents	39
9.11	Transaction	39
9.12	Sanctions; Patriot Act and FCPA Compliance	39
9.13	No Defaults	39
9.14	Title to Assets; Priority of Liens	39
9.15	No Offsets or Defenses	40
9.16	Investment Company Compliance; ERISA	40
9.17	Enforceable Obligations	40
9.18	Capital Commitments and Capital Contributions	40
9.19	Beneficial Ownership	40
SECTION 10	COVENANTS	40
10.1	Accounting Methods	41
10.2	Existence	41
10.3	Use of Proceeds	41
10.4	Change	41
10.5	Further Assurances	41
10.6	Books and Records; Access	41
10.7	Insurance	41
10.8	Maintenance of Properties	41
10.9	Liens	42
10.10	ERISA	42
10.11	Solvency	42
10.12	Taxes	42
10.13	[Reserved]	42
10.14	Compliance with Applicable Laws	42
10.15	Notifications	42
10.16	Distributions and Management Fee	42

 

 

TABLE OF CONTENTS
(continued)

 

		Page
10.17	Blocked Account	43
10.18	Quarterly Financial Statements	43
10.19	Annual Financial Statements	43
10.20	Investor Reporting	43
10.21	Debt	43
10.22	Business Activities	43
10.23	Transactions with Affiliates	43
10.24	Compliance Certificate	44
10.25	Capital Calls	44
10.26	Borrowing Base Certificate	44
10.27	Investor Documents and Exclusion Events	44
10.28	Transfers by Investors	44
10.29	Constituent Documents; Side Letters and Subscription Agreements	45
10.30	Capital Commitments	46
10.31	Returned Capital	46
10.32	RIC and BDC	46
SECTION 11	[RESERVED]	46
SECTION 12	EFFECTIVENESS; CONDITIONS OF LENDING, ETC.	46
12.1	Initial Credit Extension	47
12.2	Conditions	48
SECTION 13	EVENTS OF DEFAULT AND THEIR EFFECT	49
13.1	Events of Default	49
SECTION 14	THE AGENT	50
14.1	Appointment and Authorization	50
14.2	Issuing Lenders	51
14.3	Delegation of Duties	51
14.4	Exculpation of Administrative Agent	51
14.5	Reliance by Administrative Agent	52
14.6	Notice of Default	52
14.7	Credit Decision	52
14.8	Indemnification	53
14.9	Administrative Agent in Individual Capacity	53
14.10	Successor Administrative Agent	53
14.11	Collateral Matters	54
14.12	Restriction on Actions by Lenders	54
14.13	Administrative Agent May File Proofs of Claim	54
14.14	Other Agents; Arrangers and Managers	55
SECTION 15	GENERAL	55
15.1	Waiver; Amendments	55
15.2	Confirmations	56
15.3	Notices	56
15.4	Computations	56
15.5	Costs and Expenses	56

 

 

TABLE OF CONTENTS
(continued)

 

		Page
15.6	Assignments; Participations	57
15.7	Register	58
15.8	GOVERNING LAW	59
15.9	Confidentiality	59
15.10	Severability	60
15.11	Nature of Remedies	60
15.12	Entire Agreement	60
15.13	Counterparts	60
15.14	Successors and Assigns	60
15.15	Captions	61
15.16	Customer Identification - Patriot Act Notice	61
15.17	INDEMNIFICATION BY THE COMPANY	61
15.18	Nonliability of Lenders	62
15.19	FORUM SELECTION AND CONSENT TO JURISDICTION	62
15.20	WAIVER OF JURY TRIAL	62
15.21	Acknowledgment and Consent to Bail In of EEA Financial Institutions	63

 

 

ANNEXES

 

ANNEX A	Lenders and Pro Rata Shares
ANNEX B	Addresses for Notices
ANNEX C	Blocked Account and Collateral Account
ANNEX D	Institutional Investor Categories
	SCHEDULES
SCHEDULE 9.3	Company
SCHEDULE 9.18	Capital Commitments and Capital Contributions
	EXHIBITS
EXHIBIT A	Form of Note
EXHIBIT B	Form of Compliance Certificate
EXHIBIT C	Form of Borrowing Base Certificate
EXHIBIT D	Form of Assignment Agreement
EXHIBIT E	Form of Notice of Borrowing
EXHIBIT F	Form of Notice of Conversion/Continuation
EXHIBIT G	Form of Subscription Agreement
EXHIBIT H	Form of Capital Commitment Confirmation

 

 

CREDIT AGREEMENT

 

THIS CREDIT AGREEMENT dated as of December 31, 2019 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into among MORGAN STANLEY DIRECT LENDING FUND, a Delaware corporation (the “Company”), the financial institutions that are or may from time to time become parties hereto (together with their respective successors and permitted assigns, the “Lenders”) and CIBC BANK USA (in its individual capacity, “CIBC”), as administrative agent for the Secured Parties.

 

The Lenders have agreed to make available to the Company a revolving credit facility (which includes letters of credit) upon the terms and conditions set forth herein.

 

In consideration of the mutual agreements herein contained, the parties hereto agree as follows:

 

SECTION 1 DEFINITIONS.

 

1.1       Definitions. When used herein the following terms shall have the following meanings:

 

Administrative Agent means CIBC in its capacity as administrative agent for the Lenders hereunder and any successor thereto in such capacity.

 

Affected Loan - see Section 8.3.

 

Affiliate of any Person means (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person, (b) any officer or director of such Person and (c) with respect to any Lender, any entity administered or managed by such Lender or an Affiliate or investment advisor thereof and which is engaged in making, purchasing, holding or otherwise investing in commercial loans. A Person shall be deemed to be “controlled by” any other Person if such Person possesses, directly or indirectly, power to vote 5% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managers or power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Unless expressly stated otherwise herein, neither the Administrative Agent nor any Lender shall be deemed an Affiliate of the Company.

 

Agent Fee Letters means (i) the fee letter dated as of the date hereof between the Company and the Administrative Agent and (ii) any other fee letter between the Company and the Administrative Agent in connection with this Agreement.

 

Agreement - see the Preamble.

 

Applicable Requirement means, with respect to Investor is in a category listed on Annex D hereto, such Investor (or such Investor’s Credit Provider, Sponsor or Responsible Party, if applicable) that has (i) a Rating of BBB/Baa2 or higher; (ii) a net worth of at least $250,000,000; or (iii) a minimum Funding Ratio of 90%. With respect to clause (i) above, the first Rating indicated is the S&P Rating and the second Rating is the Moody’s Rating. In the event that the S&P and Moody’s Ratings are not equivalent, the Applicable Requirement shall be based on the lower of the two. If any such Person has only one Rating from either S&P or Moody’s, then that Rating shall apply. If the Rating of any Investor (or such Investor’s Credit Provider, Sponsor or Responsible Party, as applicable) falls below the Rating required by this definition, then such Investor shall be deemed not to satisfy the Applicable Requirement.

 

 

Assignee - see Section 15.6.1.

 

Assignment Agreement - see Section 15.6.1.

 

Attorney Costs means, with respect to any Person, all reasonable and documented fees and charges of any counsel (including internal counsel) to such Person, the reasonable allocable cost of internal legal services of such Person, all reasonable disbursements of such counsel and all court costs and similar legal expenses.

 

Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

Bail-In Legislation means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Bank Product Agreements means those certain cash management service agreements entered into from time to time between any the Company and CIBC or its Affiliates in connection with any of the Bank Products.

 

Bank Product Obligations means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by the Company to CIBC or its Affiliates pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that the Company is obligated to reimburse to the Administrative Agent or CIBC as a result of the Administrative Agent or CIBC purchasing participations or executing indemnities or reimbursement obligations with respect to the Bank Products provided to the Company pursuant to the Bank Product Agreements.

 

Bank Products means any service or facility extended to the Company by CIBC or its Affiliates including: (a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH transfers, (f) cash management, including controlled disbursement, accounts or services, or (g) Hedging Agreements.

 

Bankruptcy Code means the U. S. Bankruptcy Code.

 

Base Rate means at any time the Prime Rate plus 0.65%.

 

Base Rate Loan means any Loan which bears interest at or by reference to the Base Rate.

 

Beneficial Ownership Certification means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation means 31 C.F.R. § 1010.230.

 

Blocked Account means the account listed on Annex C with respect to the Company, which account shall be subject to the control of the Administrative Agent.

 

Books means all of a Person’s books and records including, but not limited to: minute books, ledgers, and records indicating, summarizing or evidencing such Person’s assets, liabilities, the Collateral, the Obligations, and all information relating thereto; records indicating, summarizing or evidencing such Person’s business operations or financial condition; and all computer programs, disc or tape files, printouts, runs, and other computer prepared information and the equipment containing such information.

 

 

Borrowing Base means, at any time of determination, the sum of: (a) eighty-five percent (85%) of the aggregate unfunded Capital Commitments of the Institutional Investors; (b) fifty percent (50%) of the aggregate unfunded Capital Commitments of the Individual Investors (excluding any Threshold Individual Investors); (c) seventy-five percent (75%) of the aggregate unfunded Capital Commitments of the Threshold Individual Investors; and (d) cash held in the Blocked Account; provided, however, that for purposes of calculating the Borrowing Base, (i) on and after the date that is one year from the Closing Date, the unfunded Capital Commitments of the Individual Investors (including any Threshold Individual Investors) shall not exceed more than sixty-five percent (65%) of the Borrowing Base, and (ii) at any time, the unfunded Capital Commitments of (x) any single Individual Investor (including any Threshold Individual Investor) shall not exceed more than five percent (5%) of the Borrowing Base and (y) any single Institutional Investor shall not exceed more than twenty-five percent (25%) of the Borrowing Base. No Defaulting Investor shall be an Institutional Investor, Individual Investor or Threshold Individual Investor for purposes of calculating the Borrowing Base.

 

Borrowing Base Certificate means a certificate substantially in the form of Exhibit C.

 

BSA – see Section 9.12.

 

Business Day means any day on which CIBC is open for commercial banking business in Chicago, Illinois and, in the case of a Business Day which relates to a LIBOR Loan, on which dealings are carried on in the London interbank eurodollar market.

 

Bylaws means the bylaws of the Company in effect as of the Closing Date, as amended or otherwise modified as permitted under this Agreement.

 

Capital Call means any demand or request submitted by the Company (or by the Administrative Agent) to any Investor to make a Capital Contribution or to make a payment on a Capital Commitment.

 

Capital Commitment Confirmation means an acceptance and confirmation of each Investor’s Capital Commitment under and pursuant to its Subscription Agreement delivered by the Company to each Investor in the form attached hereto as Exhibit H (or such other form as is acceptable to the Administrative Agent).

 

Capital Commitments means the capital commitment of the Investors in the amount set forth in such Investor’s Subscription Agreement, including, for the avoidance of doubt, the “Capital Commitment”, as such term is defined in such Investor’s Subscription Agreement.

 

Capital Contribution means for any Investor, the sum of the net amount of cash contributed by such Investor to the Company.

 

Capital Lease means, with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by such Person that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Person.

 

Capital Return Notice means the written notice delivered to an Investor by the Company for the purpose of making a return of capital pursuant to such Investor’s Subscription Agreement, which notice shall be in form and substance reasonably acceptable to the Administrative Agent.

 

 

Capitalized Interest Loan has the meaning provided in Section 4.5 hereof.

 

Capitalized Letter of Credit Fee Loan has the meaning provided in Section 2.3.5 hereof.

 

Capitalized Non-Use Fee Loan has the meaning provided in Section 5.1 hereof.

 

Cash Collateralize means to deliver cash collateral to an Issuing Lender, to be held as cash collateral for outstanding Letters of Credit, pursuant to documentation satisfactory to such Issuing Lender and in an amount satisfactory to such Issuing Lender which amount may exceed the Stated Amount of outstanding Letters of Credit. Derivatives of such term have corresponding meanings.

 

Change in Law means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

CIBC - see the Preamble.

 

Closing Date - see Section 12.1.

 

Code means the Internal Revenue Code of 1986, as amended.

 

Collateral means the assets identified as collateral under the Security Agreement.

 

Collateral Account means the account listed on Annex C with respect to the Company, which account shall be solely used for receipt of proceeds from Capital Calls.

 

Collateral Documents means, collectively, the Security Agreement, each control agreement and any other agreement or instrument pursuant to which the Company grants or purports to grant collateral to the Administrative Agent for the benefit of the Secured Parties or otherwise relates to such collateral.

 

Commitment means, as to any Lender, such Lender’s commitment to make Loans, and to issue or participate in Letters of Credit, under this Agreement. The initial amount of each Lender’s commitment to make Loans is set forth on Annex A.

 

Company - see the Preamble.

 

Compliance Certificate means a Compliance Certificate in substantially the form of Exhibit B.

 

Constituent Documents means, for any Person, its constituent or organizational documents and any governmental or other filings related thereto, including: (a) in the case of any limited partnership, joint venture, trust or other form of business entity, the limited partnership agreement, joint venture agreement, articles of association or other applicable agreement of formation and any agreement, instrument, filing, certificate, statement or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state or jurisdiction of its formation; (b) in the case of any limited liability company, the articles or certificate of formation and operating or limited liability company agreement for such Person; and (c) in the case of a corporation, the certificate or articles of incorporation or association, and the bylaws (as applicable) for such Person, in each such case as it may be restated, modified, amended or supplemented from time to time. For the avoidance of doubt, with respect to the Company, its “Constituent Documents” shall include the Bylaws.

 

 

Contingent Liability means, with respect to any Person, each obligation and liability of such Person and all such obligations and liabilities of such Person incurred pursuant to any agreement, undertaking or arrangement by which such Person: (a) guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness, dividend, obligation or other liability of any other Person in any manner (other than by endorsement of instruments in the course of collection), including any indebtedness, dividend or other obligation which may be issued or incurred at some future time; (b) guarantees the payment of dividends or other distributions upon the Equity Interests of any other Person; (c) undertakes or agrees (whether contingently or otherwise): (i) to purchase, repurchase, or otherwise acquire any indebtedness, obligation or liability of any other Person or any or any property or assets constituting security therefor, (ii) to advance or provide funds for the payment or discharge of any indebtedness, obligation or liability of any other Person (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, working capital or other financial condition of any other Person, or (iii) to make payment to any other Person other than for value received; (d) agrees to lease property or to purchase securities, property or services from such other Person with the purpose or intent of assuring the owner of such indebtedness or obligation of the ability of such other Person to make payment of the indebtedness or obligation; (e) to induce the issuance of, or in connection with the issuance of, any letter of credit for the benefit of such other Person; or (f) undertakes or agrees otherwise to assure a creditor against loss. The amount of any Contingent Liability shall (subject to any limitation set forth herein) be deemed to be the outstanding principal amount (or maximum permitted principal amount, if larger) of the indebtedness, obligation or other liability guaranteed or supported thereby.

 

Controlled Group means: (a) the controlled group of corporations as defined in Section 414(b) of the Code; or (b) the group of trades or businesses under common control as defined in Section 414(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code), in each case of which the Company or any of its Subsidiaries is a member.

 

Credit Link Documents means such financial information and documents as may be requested by the Administrative Agent, in its sole discretion, to reflect and connect the relevant or appropriate credit link or credit support of a Sponsor, Credit Provider or Responsible Party, as applicable, to the obligations of the applicable Investor to make Capital Contributions, which may include a written guaranty, a keepwell agreement or such other acceptable instrument determined by the Administrative Agent in its sole discretion as to whether the applicable Investor satisfies the Applicable Requirement based on the Rating or other credit standard of its Sponsor, Credit Provider or Responsible Party, as applicable.

 

Credit Provider means a Person providing Credit Link Documents, in form and substance acceptable to the Administrative Agent in its sole discretion, of the obligations of an Investor to make Capital Contributions.

 

Debt of any Person means, without duplication, (a) all indebtedness for borrowed money of such Person, whether or not evidenced by bonds, debentures, notes or similar instruments, (b) all obligations of such Person as lessee under Capital Leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (d) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person; provided that if such Person has not assumed or otherwise become liable for such indebtedness, such indebtedness shall be measured at the fair market value of such property securing such indebtedness at the time of determination, (e) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn), bankers’ acceptances and similar obligations issued for the account of such Person (including the Letters of Credit), (f) all Hedging Obligations of such Person, (g) all Contingent Liabilities of such Person and (h) all Debt of any partnership of which such Person is a general partner.

 

 

Debtor Relief Laws means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

 

Defaulting Investor is defined in the definition of “Exclusion Event” herein.

 

Defaulting Lender means any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder, or (ii) pay to Administrative Agent, the Issuing Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified Company or Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within three (3) Business Days after written request by Administrative Agent or Company, to confirm in writing to Administrative Agent and Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Company), or (d) has, or has a direct or indirect parent company that has: (i) become the subject of a proceeding under any Debtor Relief Law; (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in such proceeding or appointment; or (iv) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender as of the date established therefor by Administrative Agent in a written notice of such determination, which shall be delivered by Administrative Agent to Company and each other Lender promptly following such determination.

 

Distribution means (i) any payment, dividend or distribution arising from or in connection with any capital or equity investment in the Company, and (ii) any return of capital or return of any investment in the Company.

 

Dollar and the sign “$” mean lawful money of the United States of America.

 

 

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, Iceland, Liechtenstein, Norway and the United Kingdom (if applicable).

 

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.

 

Equity Interests mean shares of capital stock, share capital, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

 

ERISA means the Employee Retirement Income Security Act of 1974, as amended.

 

ERISA Investor means any Person that is an “employee benefit plan” or “plan” within the meaning of, and subject to the provisions of, ERISA or Section 4975 of the Code, or any other entity the assets of which are treated as “plan assets” within the meaning of, and subject to the provisions of, ERISA or Section 4975 of the Code.

 

EU Bail-In Legislation Schedule means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

Event of Default means any of the events described in Section 13.1.

 

Exchange Listing has the meaning given to such term in each Subscription Agreement.

 

Excluded Taxes means any of the following Taxes imposed on or with respect to a Lender or Administrative Agent or required to be withheld or deducted from a payment to a Lender or Administrative Agent (i) Taxes imposed upon, or measured by, the Lender’s or Administrative Agent’s net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (a) imposed as a result of such Lender or Administrative Agent being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) as a result of a present or former connection between such Lender or Administrative Agent and the jurisdiction imposing such Tax (other than connections arising from such Lender or Administrative Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document); (ii) any Tax attributable to a Lender’s or the Administrative Agent’s failure to comply with Section 7.6(d); (iii) in the case of a Lender, any U.S. withholding Tax imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Loans or Commitment pursuant to a law in effect on the date on which such Lender (a) acquires such interest in the Loans or Commitment (other than pursuant to an assignment request by the Company under Section 8.7(b)) or (b) designates a new lending office, except in each case to the extent that, pursuant to Section 7.6, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office; and (iv) any withholding Taxes under FATCA.

 

 

Exclusion Event means the occurrence, with respect to any Investor (such Investor hereinafter referred to as a “Defaulting Investor”), of any of the following events:

 

(i)                 such Investor shall: (A) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor, or liquidator of itself or of all or a substantial part of its assets; (B) file a voluntary petition as debtor in bankruptcy or admit in writing that it is generally unable to pay its debts as they become due; (C) make a general assignment for the benefit of creditors; (D) file a petition or answer seeking reorganization or an arrangement with creditors or take advantage of any Debtor Relief Law; (E) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization, or Insolvency Proceeding; or (F) take any personal, partnership, limited liability company, corporate or trust action, as applicable, for the purpose of effecting any of the foregoing;

 

(ii)               the commencement of any Insolvency Proceeding relating to such Investor or all or any material part of its respective property is instituted without the consent of such Person; or an order judgment, or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition seeking such Investor’s reorganization or liquidation, or appointing a receiver, custodian, trustee, intervenor, liquidator, administrator or similar entity, of such Person or of all or substantially all of its assets;

 

(iii)             such Investor shall repudiate, challenge, or declare unenforceable its obligation to make contributions to the capital of Company pursuant to its Capital Commitment or a Capital Call or its obligation to make contributions to the capital of Company pursuant to its Capital Commitment or a Capital Call under any of such documents shall be or become unenforceable;

 

(iv)              such Investor shall fail to make a contribution to the capital of Company within ten (10) Business Days of when due in accordance with such Capital Call, unless Administrative Agent elects in writing, in its sole discretion, to waive any such failure;

 

(v)                solely with respect to an Institutional Investor, to the actual knowledge of any Senior Officer, the occurrence of any circumstance or event which could reasonably be expected to impair, impede, or jeopardize the obligation and the liability of such Investor to fund Capital Contributions;

 

(vi)              such Investor amends its Subscription Agreement or Side Letter in any way that Administrative Agent determines would materially impair Lenders’ Collateral rights;

 

(vii)            such Investor is excused or excluded from making a Capital Contribution or funding amounts due under a Capital Call; provided that to the extent such excuse or exclusion relates solely to a portion of such Investor’s unfunded Capital Commitment, only such excused or excluded portion shall be excluded from the Borrowing Base;

 

(viii)          such Investor is a Sanctioned Person;

 

(ix)              actual knowledge by a Senior Officer of any final judgment or decree which in the aggregate exceeds fifteen percent (15%) of the net worth of such Investor shall be rendered against such Investor;

 

 

(x)                a material breach or default shall occur in the performance by such Investor of any representation, warranty, covenants or other material agreements (other than a failure to make a capital contribution described in clause (iv) above) contained in its Subscription Agreement,Side Letter or the Bylaws;

 

(xi)              such Investor shall assign, convey, exchange, sell, set-off, transfer or otherwise dispose of its Equity Interests of the Company and/or Capital Commitment, or be released from its obligation under the Bylaws or its Subscription Agreement to make contributions pursuant to a Capital Call with respect to such Equity Interests and/or Capital Commitment, provided that only such assigned, conveyed, exchanged, pledged, sold, set-off, transferred or otherwise disposed of or released Equity Interests and/or Capital Commitment shall be excluded from the Borrowing Base if less than all of such Investor’s Equity Interests and/or Capital Commitment are assigned, conveyed, exchanged, pledged, sold, set-off, transferred or otherwise disposed or released; and

 

(xii)            such Investor shall encumber or pledge any of its Equity Interests of the Company and the related Lien holder shall commence the exercise of remedies with respect to such Equity Interests; provided that only such encumbered or pledged Equity Interests shall be excluded from the Borrowing Base if less than all of such Investor’s Equity Interests are encumbered or pledged.

 

provided that any Investor in respect of which an Exclusion Event has occurred shall thereupon no longer be considered an Investor for purposes of calculating the Borrowing Base until such time as all Exclusion Events in respect of such Investor shall have been cured and such Investor shall have been restored as an Investor in the sole reasonable discretion of the Administrative Agent.

 

Facility Increase - see Section 6.1.3.

 

FATCA means Code sections 1471 through 1474, as in effect on the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Code section 1471(b)(1) and any fiscal or regulatory legislation, rules or practices adopted pursuant to any “intergovernmental agreement,” treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

Federal Funds Rate means, for any day, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent. The Administrative Agent’s determination of such rate shall be binding and conclusive absent manifest error.

 

Fiscal Quarter means a fiscal quarter of a Fiscal Year.

 

Fiscal Year means the fiscal year of the Company and its Subsidiaries, which period shall be the 12-month period ending on December 31^st of each year. References to a Fiscal Year with a number corresponding to any calendar year (e.g., “Fiscal Year 2019”) refer to the Fiscal Year ending on December 31^st of such calendar year.

 

FRB means the Board of Governors of the Federal Reserve System or any successor thereto.

 

 

Fronting Exposure means, at any time there is a Defaulting Lender, with respect to the Issuing Lender, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Obligations other than Letter of Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

Funding Ratio means: (a) for any Governmental Plan Investor or other plan not covered by clause (b) below, the total net fair market value of the assets of the plan over the actuarial present value of the plan’s total benefit liabilities, as reported in such plan’s most recent audited financial statements; and (b) for an ERISA Investor that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA and is subject to Title IV of ERISA or Section 412 of the Code that is subject to Form 5500 – series reporting requirements, the funding target attainment percentage reported on Schedule SB to the Form 5500 or the funded percentage for monitoring the plan’s status reported on Schedule MB to the Form 5500, as applicable, as reported on the most recently filed Form 5500 by such ERISA Investor with the United States Department of Labor.

 

GAAP means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession) and the Securities and Exchange Commission, which are applicable to the circumstances as of the date of determination.

 

Governmental Authorities means (i) the United States; (ii) the state, county, city or other political subdivisions; (iii) all other governmental or quasi-governmental authorities, boards, bureaus, agencies, commissions, departments, administrative tribunals, instrumentalities and authorities; and (iv) all judicial authorities and public utilities having or exercising jurisdiction over the Company, the Company’s assets or the Collateral. The term “Governmental Authority” means any one of the Governmental Authorities.

 

Governmental Permits means all permits, approvals, licenses and authorizations now or hereafter issued by any Governmental Authority for or in connection with the conduct of the Company’s business or the ownership or use by the Company of its properties and the Collateral.

 

Governmental Plan Investor means an Investor that is a governmental plan as defined in Section 3(32) of ERISA.

 

Governmental Requirements means all existing and future laws, ordinances, rules, regulations, orders, and requirements of all Governmental Authorities applicable to the Company, the Collateral or any of the Company’s assets or properties.

 

Hedging Agreement means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices.

 

Hedging Obligation means, with respect to any Person, any liability of such Person under any Hedging Agreement. The amount of any Person’s obligation in respect of any Hedging Obligation shall be deemed to be the incremental obligation that would be reflected in the financial statements of such Person in accordance with GAAP.

 

Increase Amount - see Section 6.1.3.

 

Indemnified Liabilities - see Section 15.17.

 

 

Indemnified Taxes means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Company under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

Individual Investor means an Investor (a) that is (i) a client of Morgan Stanley Wealth Management and that is an “accredited investor” as defined in Regulation D or (ii) does not qualify as an Institutional Investor and is designated as an Individual Investor by the Administrative Agent in its sole discretion; and (b) in respect of which there has been delivered to the Administrative Agent the documents required under Section 10.27, which shall be acceptable to the Administrative Agent in its sole discretion.

 

Insolvency Proceeding means any proceeding commenced by or against the Company under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, including, but not limited to, assignments for the benefit of creditors, formal or informal moratoriums, compositions or extensions with some or all creditors.

 

Institutional Investor means (a) (i) MS Credit Partners Holdings Inc. and any other wholly-owned Subsidiary of Morgan Stanley that is consolidated for financial and tax reporting purposes, (ii) any Investor to the extent such Investor is in a category listed on Annex D hereto and satisfies an Applicable Requirement, in each case, as determined by the Administrative Agent in its sole discretion, and (iii) any other Investor designated in writing as such by the Administrative Agent and the Required Lenders in their sole discretion; and (b) in respect of which there has been delivered to the Administrative Agent the documents required under Section 10.27, which shall be acceptable to the Administrative Agent in its sole discretion.

 

Interest Period means, as to any LIBOR Loan, the period commencing on the date such Loan is borrowed or continued as, or converted into, a LIBOR Loan and ending on the date one, two or three months thereafter as selected by the Company pursuant to Section 2.2.2 or 2.2.3, as the case may be or such shorter time as agreed by the Administrative Agent; provided that:

 

(a)              if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day;

 

(b)             any Interest Period that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c)              the Company may not select any Interest Period for a Loan which would extend beyond the scheduled Termination Date.

 

Investment Company Act means the Investment Company Act of 1940, as amended from time to

time.

 

Investor means each Persons that is a shareholder of the Company.

 

Investor Information has the meaning provided in Section 15.9.

 

 

ISP means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

 

Issuing Lender means CIBC, in its capacity as the issuer of Letters of Credit hereunder, or any Affiliate of CIBC that may from time to time issue Letters of Credit, or any other financial institution that CIBC may cause to issue Letters of Credit for the account of the Company, and their successors and assigns in such capacity.

 

L/C Application means, with respect to any request for the issuance of a Letter of Credit, a letter of credit application in the form being used by an Issuing Lender at the time of such request for the type of letter of credit requested.

 

L/C Fee Rate means 2.00%.

 

L/C Sublimit means an amount equal to $50,000,000.

 

Lender - see the Preamble. References to the “Lenders” shall include the Issuing Lenders; for purposes of clarification only, to the extent that CIBC (or any successor Issuing Lender) may have any rights or obligations in addition to those of the other Lenders due to its status as Issuing Lender, its status as such will be specifically referenced. In addition to the foregoing, for the purpose of identifying the Persons entitled to share in the Collateral and the proceeds thereof under, and in accordance with the provisions of, this Agreement and the Collateral Documents, the term “Lender” shall include Affiliates of CIBC providing a Bank Product.

 

Lender Party - see Section 15.17.

 

Letter of Credit - see Section 2.1.2.

 

Letter of Credit Obligations means the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all unreimbursed amounts. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, or because a pending drawing submitted on or before the expiration date of such Letter of Credit has not yet been honored, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

LIBOR Loan means any Loan which bears interest at a rate determined by reference to the LIBOR Rate.

 

LIBOR Margin means 1.65%.

 

LIBOR Office means with respect to any Lender the office or offices of such Lender which shall be making or maintaining the LIBOR Loans of such Lender hereunder. A LIBOR Office of any Lender may be, at the option of such Lender, either a domestic or foreign office.

 

LIBOR Rate means a rate of interest equal to (a) the per annum rate of interest at which United States dollar deposits in an amount comparable to the amount of the relevant LIBOR Loan and for a period equal to the relevant Interest Period are offered in the London Interbank Eurodollar market at 11:00 A.M. (London time) two (2) Business Days prior to the commencement of such Interest Period (or three (3) Business Days prior to the commencement of such Interest Period if banks in London, England were not open and dealing in offshore United States dollars on such second preceding Business Day), as displayed in the Bloomberg Financial Markets system (or other authoritative source selected by the Administrative Agent in its sole discretion) or, if the Bloomberg Financial Markets system or another authoritative source is not available, as the LIBOR Rate is otherwise determined by the Administrative Agent in its sole and absolute discretion, divided by (b) a number determined by subtracting from 1.00 the then stated maximum reserve percentage for determining reserves to be maintained by member banks of the Federal Reserve System for Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D), such rate to remain fixed for such Interest Period; provided that if the LIBOR Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. The Administrative Agent’s determination of the LIBOR Rate shall be conclusive, absent manifest error.

 

 

Lien means, with respect to any Person, any interest granted by such Person in any real or personal property, asset or other right owned or being purchased or acquired by such Person (including an interest in respect of a Capital Lease) which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, title retention lien, charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise.

 

Liquidation Distribution means any Distribution arising from the liquidation or termination or winding down of the Company.

 

Loan Documents means this Agreement, the Notes, the Letters of Credit, the Master Letter of Credit Agreement, the L/C Applications, the Agent Fee Letters, the Collateral Documents and all documents, instruments and agreements delivered in connection with the foregoing.

 

Loan or Loans - see Section 2.1.1.

 

Management Agreement means the Investment Advisory Agreement, dated as of November 25, 2019, by and between the Company and the Management Company.

 

Management Company means MS Capital Partners Adviser Inc., a Delaware corporation, including all of its successors and assigns.

 

Master Letter of Credit Agreement means, at any time, with respect to the issuance of Letters of Credit, a master letter of credit agreement or reimbursement agreement in the form, if any, being used by an Issuing Lender at such time.

 

Material Adverse Effect means (a) a material adverse change in, or a material adverse effect upon, the financial condition, operations, assets, business, properties or prospects of the Company, (b) a material impairment of the ability of the Company to perform any of the Obligations under any Loan Document or (c) a material adverse effect upon any substantial portion of the collateral under the Collateral Documents or upon the legality, validity, binding effect or enforceability against the Company of any Loan Document.

 

Moody’s means Moody’s Investors Service, Inc. and any successor thereto.

 

Non-Defaulting Lender means each Lender other than a Defaulting Lender.

 

Non-U.S. Participant - see Section 7.6(d).

 

Non-Use Fee Rate means 0.20%.

 

 

Note means a promissory note substantially in the form of Exhibit A.

 

Notice of Borrowing - see Section 2.2.2.

 

Notice of Conversion/Continuation - see Section 2.2.3.

 

Obligations means all obligations (monetary (including post-petition interest, allowed or not) or otherwise) of the Company under this Agreement and any other Loan Document including Attorney Costs and any reimbursement obligations of the Company in respect of Letters of Credit and surety bonds, all Hedging Obligations permitted hereunder which are owed to CIBC or its Affiliate, and all Bank Products Obligations, all in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due.

 

Other Taxes means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are imposed as a result of a present or former connection between any Lender or Administrative Agent and the jurisdiction imposing such Tax (other than connections arising from such Lender or Administrative Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document) with respect to an assignment (other than an assignment made pursuant to Section 8.7(b)).

 

Participant - see Section 15.6.2.

 

Patriot Act means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as the same has been, or shall hereafter be, renewed, extended, amended or replaced, and the rules and regulations promulgated thereunder from time to time in effect.

 

Pension Plan means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), including any single-employer plan or multiemployer plan (as such terms are defined in Section 4001(a)(15) and in Section 4001(a)(3) of ERISA, respectively), that is subject to Title IV of ERISA or Section 412 of the Code.

 

Permitted Liens means any and all of the following: (i) Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings; (ii) bankers’ liens in favor of the applicable depository bank at which the Collateral Account and the Blocked Account is held; and (iii) any other Liens agreed to in writing by the Administrative Agent and Required Lenders.

 

Person means any natural person, corporation, partnership, trust, limited liability company, association, governmental authority or unit, or any other entity, whether acting in an individual, fiduciary or other capacity.

 

Prime Rate means, for any day, the rate of interest per annum from time to time published in the money rates section of The Wall Street Journal or any successor publication thereto as the “prime rate” then in effect; provided that if such rate of interest, as set forth from time to time in the money rates section of The Wall Street Journal, becomes unavailable for any reason as determined by the Administrative Agent, “Prime Rate” shall mean the rate of interest in effect for such day as publicly

  

 

 

announced from time to time by the Administrative Agent as its prime rate (whether or not such rate is actually charged by the Administrative Agent), which is not intended to be the Administrative Agent’s lowest or most favorable rate of interest at any one time. Any change in the Prime Rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change; provided that the Administrative Agent shall not be obligated to give notice of any change in the Prime Rate.

 

Pro Rata Share means, with respect to a Lender’s obligation to make Loans, participate in Letters of Credit, reimburse the Issuing Lenders, and receive payments of principal, interest, fees, costs, and expenses with respect thereto and with respect of all other matters or to a particular Lender, (x) prior to the Revolving Commitment being terminated or reduced to zero, the percentage obtained by dividing (i) such Lender’s Revolving Commitment, by (ii) the aggregate Revolving Commitment of all Lenders and (y) from and after the time the Revolving Commitment has been terminated or reduced to zero, the percentage obtained by dividing (i) the aggregate unpaid principal amount of such Lender’s Revolving Outstandings by (ii) the aggregate unpaid principal amount of all Revolving Outstandings.

 

Rating means, for any Person, its senior unsecured debt rating (or equivalent thereof), such as, but not limited to, a corporate credit rating, issuer rating/insurance financial strength rating (for an insurance company), general obligation rating or credit enhancement program (for a governmental entity), or revenue bond rating (for an educational institution or a governmental entity) from S&P or Moody’s.

 

Regulation D, Regulation G, Regulation T, Regulation U and Regulation X means Regulation D, G, T, U, or X, as the case may be, of the FRB, from time to time in effect, and shall include any successor or other regulation relating to reserve requirements or margin requirements, as the case may be, applicable to member banks of the Federal Reserve System.

 

Replacement Lender - see Section 8.7(b).

 

Required Lenders means, at any time, Lenders whose aggregate Pro Rata Shares exceed 50% as determined pursuant to the definition of “Pro Rata Share”; provided, that at no time shall less than two unaffiliated Lenders constitute “Required Lenders”. The Commitments of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

 

Responsible Party means, for any Governmental Plan Investor: (a) if the state under which the Governmental Plan Investor operates is obligated to fund the Governmental Plan Investor and is liable to fund any shortfalls, the state; and (b) otherwise, the Governmental Plan Investor itself.

 

Returned Capital means, for any Investor, at any time, any amounts distributed to such Investor that are subject to recall as a Capital Contribution pursuant to such Investor’s Subscription Agreement. Any amount of Returned Capital distributed to an Investor shall appear on a Capital Return Notice, duly completed and executed by the Company.

 

Revolving Commitment means, as of the Closing Date, $100,000,000, as increased or reduced from time to time pursuant to Section 6.1.

 

Revolving Loan Availability means the lesser of (i) the Revolving Commitment and (ii) the Borrowing Base.

 

Revolving Outstandings means, at any time, the sum of (a) the aggregate principal amount of all outstanding Loans, plus (b) the Stated Amount of all Letters of Credit.

 

 

RIC means a person qualifying for treatment as a “regulated investment company” under the Code.

 

S&P means S&P Global Ratings, a subsidiary of S&P Global Inc. and any successor thereto.

 

Sanctions means any and all economic or financial sanctions, trade embargoes and anti-terrorism laws imposed, administered or enforced by the United States of America, including those administered by the U.S. Department of Treasury, including the Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, or through any existing or future executive order.

 

Sanctioned Country means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Credit Agreement, Crimea, Cuba, Iran, North Korea and Syria).

 

Sanctioned Person means (a) a Person named on the list of “Specially Designated Nationals and Blocked Persons” or any similar list maintained by OFAC, or as otherwise published from time to time, by the U.S. Department of State, (b) (i) an agency of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country, or (iii) a Person resident in, organized under the laws of, or operating in, a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC, or (c) any Person owned directly or indirectly 50 percent or more by any such Person or Persons described in the foregoing clauses (a) or (b).

 

SEC means the Securities and Exchange Commission or any other governmental authority succeeding to any of the principal functions thereof.

 

Secured Parties means the Administrative Agent, the Lenders and the Issuing Lender.

 

Security Agreement means the Security Agreement, dated as of the Closing Date, executed and delivered by the Company, together with any other security agreement executed by the Company, in each case in form and substance satisfactory to the Administrative Agent.

 

Senior Officer means, with respect to the Company, any of the chief executive officer, the chief financial officer, the chief operating officer, the treasurer of the Company or any other officer or the equivalent thereof (including a secretary or an assistant secretary).

 

Side Letter means any side letter by and between an Investor and the Company that amends the Bylaws or such Investor’s Subscription Agreement.

 

Sponsor means, for any ERISA Investor, a sponsor as that term is understood under ERISA, specifically, the entity that established the plan and is responsible for the maintenance of the plan and, in the case of a plan that has a sponsor and participating employers, the entity that has the ability to amend or terminate the plan, and in the case of an ERISA Investor that is an individual retirement account or individual retirement annuity, the owner of such account or annuity for whose benefit the account or annuity has been established.

 

Stated Amount means, with respect to any Letter of Credit at any date of determination, (a) the maximum aggregate amount available for drawing thereunder under any and all circumstances plus (b) the aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit.

 

Subscription Agreement means a subscription agreement executed by an Investor in connection with its Equity Interests in the Company in the form attached hereto as Exhibit G (or such other form as is acceptable to the Administrative Agent).

 

 

Subsidiary means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which such Person owns, directly or indirectly, such number of outstanding Equity Interests as have more than 50% of the ordinary voting power for the election of directors or other managers of such corporation, partnership, limited liability company or other entity. Unless the context otherwise requires, each reference to Subsidiaries herein shall be a reference to Subsidiaries of the Company.

 

Taxes means any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including interest and penalties and other additions to taxes with respect to the foregoing.

 

Termination Date means the earlier to occur of (a) December 31, 2022 or (b) such other date on which the Commitments terminate pursuant to Section 6 or 13.

 

Threshold Individual Investor means an Individual Investor that has made Capital Contributions in an amount equal to or greater than fifty percent (50%) of its Capital Commitment.

 

Type - see Section 2.2.1.

 

UCC means the Uniform Commercial Code as adopted in the State of New York and any other state from time to time, which governs creation or perfection (and the effect thereof) of security interests in any Collateral.

 

Unmatured Event of Default means any event that, if it continues uncured, will, with lapse of time or notice or both, constitute an Event of Default.

 

Withholding Agent means the Company and the Administrative Agent.

 

Withholding Certificate - see Section 7.6(d)(i)(D).

 

Write-Down and Conversion Powers means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

1.2       Other Interpretive Provisions.

 

(a)       The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)       Section, Annex, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(c)       The term “including” is not limiting and means “including without limitation.”

 

(d)       In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including.”

 

(e)       Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement and the other Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, supplements and other modifications thereto, but only to the extent such amendments, restatements, supplements and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation shall be construed as including all statutory and regulatory provisions amending, replacing, supplementing or interpreting such statute or regulation.

 

 

(f)        This Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and each shall be performed in accordance with its terms.

 

(g)       This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Administrative Agent, the Company, the Lenders and the other parties thereto and are the products of all parties. Accordingly, they shall not be construed against the Administrative Agent or the Lenders merely because of the Administrative Agent’s or Lenders’ involvement in their preparation.

 

1.3       Reports. Documents required to be delivered pursuant to Section 10.18, Section 10.19 or Section 10.20, to the extent any such documents are included in materials otherwise filed with the SEC, may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the Company’s behalf on an internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or the Securities and Exchange Commission website).

 

SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES.

 

2.1       Commitments. On and subject to the terms and conditions of this Agreement, each of the Lenders, severally and for itself alone, agrees to make loans to, and to issue or participate in letters of credit for the account of, the Company as follows:

 

2.1.1    Revolving Commitment. Each Lender with a Revolving Commitment agrees to make loans on a revolving basis (“Loans”) from time to time until the Termination Date in such Lender’s Pro Rata Share of such aggregate amounts as the Company may request from all Lenders; provided that (i) the Revolving Outstandings will not at any time exceed Revolving Loan Availability and (ii) such Lender’s Pro Rata Share of the Revolving Outstandings will not exceed the Revolving Commitment of such Lender.

 

2.1.2    L/C Commitment. Subject to Section 2.3.1, each Issuing Lender agrees to issue stand-by letters of credit, in each case containing such terms and conditions as are permitted by this Agreement and are reasonably satisfactory to such Issuing Lender (each, a “Letter of Credit”), at the request of and for the account of the Company from time to time before the scheduled Termination Date and, as more fully set forth in Section 2.3.2, each Lender agrees to purchase a participation in each such Letter of Credit; provided that (x) the Revolving Outstandings shall not at any time exceed Revolving Loan Availability and (y) the aggregate stated amount of the outstanding Letters of Credit shall not exceed the L/C Sublimit.

 

2.2       Loan Procedures.

 

2.2.1 Various Types of Loans. Each Loan shall be divided into tranches which are, either a Base Rate Loan or a LIBOR Loan (each a “type” of Loan), as the Company shall specify in the related notice of borrowing or conversion pursuant to Section 2.2.2 or 2.2.3. Base Rate Loans and LIBOR Loans may be outstanding at the same time, provided that not more than 10 different LIBOR Loans shall be outstanding at any one time. All borrowings, conversions and repayments of Loans shall be effected so that each Lender will have a ratable share (according to its Pro Rata Share) of all types of Loans.

 

 

2.2.2    Borrowing Procedures. The Company shall give written notice (each such written notice, a “Notice of Borrowing”) substantially in the form of Exhibit E or telephonic notice (followed immediately by a Notice of Borrowing) to the Administrative Agent of each proposed borrowing not later than (a) in the case of a Base Rate borrowing, 10:00 A.M., Chicago time, on the proposed date of such borrowing, and (b) in the case of a LIBOR borrowing, 1:00 P.M., Chicago time, three Business Days prior to the proposed date of such Borrowing. Each such notice shall be effective upon receipt by the Administrative Agent, shall be irrevocable, and shall specify the date, amount and type of borrowing and, in the case of a LIBOR borrowing, the initial Interest Period therefor. Promptly upon receipt of such notice, the Administrative Agent shall advise each Lender thereof. Not later than 1:00 P.M., Chicago time, on the date of a proposed borrowing, each Lender shall provide the Administrative Agent at the office specified by the Administrative Agent with immediately available funds covering such Lender’s Pro Rata Share of such borrowing and, so long as the Administrative Agent has not received written notice that the conditions precedent set forth in Section 12.2 with respect to such borrowing have not been satisfied, the Administrative Agent shall pay over the funds received by the Administrative Agent to the Company on the requested borrowing date. Each borrowing shall be on a Business Day. Each Base Rate borrowing shall be in an aggregate amount of at least $200,000 or a higher integral multiple of $50,000, and each LIBOR Rate borrowing shall be in an aggregate amount of at least $500,000 or a higher integral multiple of at least $100,000; provided that a Base Rate Loan may be in an aggregate amount that is equal to the entire unused balance of the Revolving Loan Availability of the Company or that is required to finance the reimbursement of a Letter of Credit under Section 2.3.3 or that is equal to the amount of any unused commitment fees or interest payment that is permitted to be capitalized as a Capitalized Non-Use Fee Loan or Capitalized Interest Loan, as applicable, in accordance with Section 2.3.5 or Section 5.1 hereof, as applicable.

 

2.2.3    Conversion and Continuation Procedures. (a) Subject to Section 2.2.1, the Company may, upon irrevocable written notice to the Administrative Agent in accordance with clause (b) below:

 

(A)              elect, as of any Business Day, to convert any Loans (or any part thereof in an aggregate amount not less than $200,000 or a higher integral multiple of $50,000) into Loans of the other type; or

 

(B)              elect, as of the last day of the applicable Interest Period, to continue any LIBOR Loans having Interest Periods expiring on such day (or any part thereof in an aggregate amount not less than $500,000 or a higher integral multiple of $50,000) for a new Interest Period;

 

provided that after giving effect to any prepayment, conversion or continuation, the aggregate principal amount of each LIBOR Loan shall be at least $500,000 and an integral multiple of $50,000.

 

(b)       The Company shall give written notice (each such written notice, a “Notice of Conversion/Continuation”) substantially in the form of Exhibit F or telephonic notice (followed immediately by a Notice of Conversion/Continuation) to the Administrative Agent of each proposed conversion or continuation not later than (i) in the case of conversion into Base Rate Loans, 10:00 A.M., Chicago time, on the proposed date of such conversion and (ii) in the case of conversion into or continuation of LIBOR Loans, 1:00 P.M., Chicago time, three Business Days prior to the proposed date of such conversion or continuation, specifying in each case:

 

 

(A)              the proposed date of conversion or continuation;

 

(B)              the aggregate amount of Loans to be converted or continued;

 

(C)              the type of Loans resulting from the proposed conversion or continuation; and

 

(D)              in the case of conversion into, or continuation of, LIBOR Loans, the duration of the requested Interest Period therefor.

 

The acceptance by the Administrative Agent of a Notice of Conversion/Continuation with respect to a conversion into or continuation of a LIBOR Loan is subject to the condition that no Event of Default or Unmatured Event of Default exists at the time of such request.

 

(c)       If upon the expiration of any Interest Period applicable to LIBOR Loans, the Company has failed to select timely a new Interest Period to be applicable to such LIBOR Loans, the Company shall be deemed to have elected to convert such LIBOR Loans into Base Rate Loans effective on the last day of such Interest Period.

 

(d)       The Administrative Agent will promptly notify each Lender of its receipt of a notice of conversion or continuation pursuant to this Section 2.2.3 or, if no timely notice is provided by the Company, of the details of any automatic conversion.

 

(e)       Any conversion of a LIBOR Loan on a day other than the last day of an Interest Period therefor shall be subject to Section 8.4.

 

2.3       Letter of Credit Procedures.

 

2.3.1    L/C Applications. The Company shall execute and deliver to each Issuing Lender each Master Letter of Credit Agreement from time to time in effect with respect to such Issuing Lender. The Company shall give notice to the Administrative Agent and the applicable Issuing Lender of the proposed issuance of each Letter of Credit on a Business Day which is at least three Business Days (or such lesser number of days as the Administrative Agent and such Issuing Lender shall agree in any particular instance in their sole discretion) prior to the proposed date of issuance of such Letter of Credit. Each such notice shall be accompanied by an L/C Application, duly executed by the Company and in all respects reasonably satisfactory to the Administrative Agent and the applicable Issuing Lender, together with such other documentation as the Administrative Agent or such Issuing Lender may request in support thereof, it being understood that each L/C Application shall specify, among other things, the date on which the proposed Letter of Credit is to be issued, the expiration date of such Letter of Credit (which shall not be later than the scheduled Termination Date; provided that, a Letter of Credit may extend up to 12 months beyond the scheduled Termination Date as long as such Letter of Credit is Cash Collateralized at least 7 days prior to the scheduled Termination Date) and whether such Letter of Credit is to be transferable in whole or in part. Any Letter of Credit outstanding after the scheduled Termination Date which is Cash Collateralized for the benefit of an Issuing Lender shall be the sole responsibility of such Issuing Lender. So long as (i) the applicable Issuing Lender has not received written notice that the conditions precedent set forth in Section 12 with respect to the issuance of such Letter of Credit have not been satisfied and (ii) no Lender is at that time a Defaulting Lender (unless the Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Lender in its sole discretion, to eliminate the Issuing Lender’s Fronting Exposure), such Issuing Lender shall issue such Letter of Credit on the requested issuance date. Each Issuing Lender shall promptly advise the Administrative Agent of the issuance of each Letter of Credit and of any amendment thereto, extension thereof or event or circumstance changing the amount available for drawing thereunder. In the event of any inconsistency between the terms of any Master Letter of Credit Agreement, any L/C Application and the terms of this Agreement, the terms of this Agreement shall control.

 

 

2.3.2    Participations in Letters of Credit. Concurrently with the issuance of each Letter of Credit, the applicable Issuing Lender shall be deemed to have sold and transferred to each Lender with a Revolving Commitment, and each such Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Lender’s Pro Rata Share, in such Letter of Credit and the Company’s reimbursement obligations with respect thereto. If the Company does not pay any reimbursement obligation when due, the Company shall be deemed to have immediately requested that the Lenders make a Loan which is a Base Rate Loan in a principal amount equal to such reimbursement obligations. The Administrative Agent shall promptly notify such Lenders of such deemed request and, without the necessity of compliance with the requirements of Section 2.2.2, Section 12.2 or otherwise such Lender shall make available to the Administrative Agent its Pro Rata Share of such Loan. The proceeds of such Loan shall be paid over by the Administrative Agent to the applicable Issuing Lender for the account of the Company in satisfaction of such reimbursement obligations. For the purposes of this Agreement, the unparticipated portion of each Letter of Credit shall be deemed to be the applicable Issuing Lender’s “participation” therein. Each Issuing Lender hereby agrees, upon request of the Administrative Agent or any Lender, to deliver to the Administrative Agent or such Lender a list of all outstanding Letters of Credit issued by such Issuing Lender, together with such information related thereto as the Administrative Agent or such Lender may reasonably request.

 

2.3.3   Reimbursement Obligations. (a) The Company hereby unconditionally and irrevocably agrees to reimburse each Issuing Lender for each payment or disbursement made by such Issuing Lender under any Letter of Credit honoring any demand for payment made by the beneficiary thereunder, in each case on the date that such payment or disbursement is made. Any amount not reimbursed on the date of such payment or disbursement shall bear interest from the date of such payment or disbursement to the date that the applicable Issuing Lender is reimbursed by the Company therefor, payable on demand, at a rate per annum equal to the Base Rate from time to time in effect plus the Base Rate Margin from time to time in effect plus, beginning on the third Business Day after receipt of notice from such Issuing Lender of such payment or disbursement, 2%. Each Issuing Lender shall notify the Company and the Administrative Agent whenever any demand for payment is made under any Letter of Credit by the beneficiary thereunder; provided that the failure of an Issuing Lender to so notify the Company or the Administrative Agent shall not affect the rights of such Issuing Lender or the Lenders in any manner whatsoever.

 

(b)       The Company’s reimbursement obligations hereunder shall be irrevocable and unconditional under all circumstances, including (a) any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Document, (b) the existence of any claim, set-off, defense or other right which the Company may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Issuing Lenders, any Lender or any other Person, whether in connection with any Letter of Credit, this Agreement, any other Loan Document, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Company and the beneficiary named in any Letter of Credit), (c) the validity, sufficiency or genuineness of any document which an Issuing Lender has determined complies on its face with the terms of the applicable Letter of Credit, even if such document should later prove to have been forged, fraudulent, invalid or insufficient in any respect or any statement therein shall have been untrue or inaccurate in any respect, or (d) the surrender or impairment of any security for the performance or observance of any of the terms hereof. Without limiting the foregoing, no action or omission whatsoever by the Administrative Agent or any Lender (excluding any Lender in its capacity as an Issuing Lender) under or in connection with any Letter of Credit or any related matters shall result in any liability of the Administrative Agent or any Lender to the Company, or relieve the Company of any of its obligations hereunder to any such Person.

 

 

2.3.4   Funding by Lenders to Issuing Lender. If any Issuing Lender makes any payment or disbursement under any Letter of Credit and (a) the Company has not reimbursed such Issuing Lender in full for such payment or disbursement by 11:00 A.M., Chicago time, on the date of such payment or disbursement, (b) a Loan may not be made in accordance with Section 2.3.2 or (c) any reimbursement received by such Issuing Lender from the Company is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Company or otherwise, each other Lender with a Revolving Commitment shall be obligated to pay to the Administrative Agent for the account of such Issuing Lender, in full or partial payment of the purchase price of its participation in such Letter of Credit, its Pro Rata Share of such payment or disbursement (but no such payment shall diminish the obligations of the Company under Section 2.3.3), and, upon notice from such Issuing Lender, the Administrative Agent shall promptly notify each other Lender thereof. Each other Lender irrevocably and unconditionally agrees to so pay to the Administrative Agent in immediately available funds for the applicable Issuing Lender’s account the amount of such other Lender’s Pro Rata Share of such payment or disbursement. If and to the extent any Lender shall not have made such amount available to the Administrative Agent by 2:00 P.M., Chicago time, on the Business Day on which such Lender receives notice from the Administrative Agent of such payment or disbursement (it being understood that any such notice received after noon, Chicago time, on any Business Day shall be deemed to have been received on the next following Business Day), such Lender agrees to pay interest on such amount to the Administrative Agent for the applicable Issuing Lender’s account forthwith on demand, for each day from the date such amount was to have been delivered to the Administrative Agent to the date such amount is paid, at a rate per annum equal to (a) for the first three days after demand, the Federal Funds Rate from time to time in effect and (b) thereafter, the Base Rate from time to time in effect. Any Lender’s failure to make available to the Administrative Agent its Pro Rata Share of any such payment or disbursement shall not relieve any other Lender of its obligation hereunder to make available to the Administrative Agent such other Lender’s Pro Rata Share of such payment, but no Lender shall be responsible for the failure of any other Lender to make available to the Administrative Agent such other Lender’s Pro Rata Share of any such payment or disbursement.

 

2.4       Commitments Several. The failure of any Lender to make a requested Loan on any date shall not relieve any other Lender of its obligation (if any) to make a Loan on such date, but no Lender shall be responsible for the failure of any other Lender to make any Loan to be made by such other Lender.

 

2.5       Certain Conditions. Notwithstanding any other provision of this Agreement, no Lender shall have an obligation to make any Loan, or to permit the continuation of or any conversion into any LIBOR Loan, and no Issuing Lender shall have any obligation to issue any Letter of Credit, if an Event of Default or Unmatured Event of Default exists.

 

2.6       Defaulting Lenders. Notwithstanding any other provision of this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

 

(a)       within thirteen (13) Business Days following the written request of the Administrative Agent or any Issuing Lender (with a copy to the Administrative Agent), the Company shall Cash Collateralize the Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender;

 

(b)       the non-use fee of such Defaulting Lender pursuant to Section 5.1 and the Letter of Credit fees of such Defaulting Lender pursuant to Section 5.2 shall cease to accrue, provided, that with respect to any Letter of Credit fee not required to be paid to any Defaulting Lender, the Company shall pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (d) below;

 

 

(c)       the Commitments of such Defaulting Lender shall not be included in determining whether the Required Lenders or other requisite Lenders have taken or may take any action hereunder;

 

(d)       all or any part of such Defaulting Lender’s participation in Letter of Credit Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;

 

(e)       if the reallocation described in clause (d) above cannot, or can only partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize the Issuing Lender’s Fronting Exposure; and

 

(f)        each Defaulting Lender shall indemnify Administrative Agent and each Non-Defaulting Lender from and against any and all loss, damage or expenses, including but not limited to reasonable attorneys’ fees and funds advanced by Administrative Agent or by any Non-Defaulting Lender, on account of a Defaulting Lender’s failure to timely fund its pro rata share of the Loans or to otherwise perform its obligations under the Loan Documents.

 

In the event that Administrative Agent, Lenders and Company each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Commitments of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders, if any, as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share, and such Lender shall then cease to be a Defaulting Lender with respect to subsequent periods unless such Lender shall thereafter become 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 Company while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

SECTION 3 EVIDENCING OF LOANS.

 

3.1       Notes. The Loans of each Lender may be evidenced by a Note, with appropriate insertions, payable to such Lender in a face principal amount equal to the sum of such Lender’s Revolving Commitment.

 

3.2       Recordkeeping. The Administrative Agent, on behalf of each Lender, shall record in its records, the date and amount of each Loan made by each Lender, each repayment or conversion thereof and, in the case of each LIBOR Loan, the dates on which each Interest Period for such Loan shall begin and end. The aggregate unpaid principal amount so recorded shall be rebuttably presumptive evidence of the principal amount of the Loans owing and unpaid. The failure to so record any such amount or any error in so recording any such amount shall not, however, limit or otherwise affect the Obligations of the Company hereunder or under any Note to repay the principal amount of the Loans hereunder, together with all interest accruing thereon.

 

 

SECTION 4 INTEREST.

 

4.1       Interest Rates. The Company promises to pay interest on the unpaid principal amount of each Loan for the period commencing on the date of such Loan until such Loan is paid in full as follows:

 

(a)       at all times while such Loan is a Base Rate Loan, at a rate per annum equal to the Base Rate from time to time in effect; and

 

(b)       at all times while such Loan is a LIBOR Loan, at a rate per annum equal to the sum of the LIBOR Rate applicable to each Interest Period for such Loan plus the LIBOR Margin;

 

provided that at any time an Event of Default exists, unless the Required Lenders otherwise consent, the interest rate applicable to the overdue amount outstanding of each Loan shall be increased by 2% (and, in the case of Obligations not bearing interest, such Obligations shall bear interest at the Base Rate applicable to Loans plus 2%), provided further that such increase may thereafter be rescinded by the Required Lenders, notwithstanding Section 15.1. Notwithstanding the foregoing, upon the occurrence of an Event of Default under Section 13.1.1, 13.1.4 or 13.1.5, such increase shall occur automatically.

 

4.2       Interest Payment Dates. Accrued interest on each Loan shall be payable in arrears on the fifth (5^th) calendar day immediately following each calendar quarter end and on the Termination Date; provided, that if the fifth (5^th) calendar day immediately following each calendar quarter end is not a Business Day, such payment date shall be extended to the following Business Day; provided further that, the interest payable on each Loan for any interest payment date shall accrue through the day prior to the date such interest is actually paid. For the avoidance of doubt, each interest payment date hereunder with respect to any LIBOR Loan shall be made irrespective of the applicable end of the Interest Period related to such LIBOR Loan. After the Termination Date, and at any time an Event of Default exists, accrued interest on all Loans shall be payable on demand.

 

4.3       Setting and Notice of LIBOR Rates. The applicable LIBOR Rate for each Interest Period shall be determined by the Administrative Agent, and notice thereof shall be given by the Administrative Agent promptly to the Company and each Lender. Each determination of the applicable LIBOR Rate by the Administrative Agent shall be conclusive and binding upon the parties hereto, in the absence of demonstrable error. The Administrative Agent shall, upon written request of the Company or any Lender, deliver to the Company or such Lender a statement showing the computations used by the Administrative Agent in determining any applicable LIBOR Rate hereunder.

 

4.4       Computation of Interest. Interest shall be computed for the actual number of days elapsed on the basis of a year of 360 days. The applicable interest rate for each Base Rate Loan shall change simultaneously with each change in the Base Rate.

 

4.5       Capitalization of Interest. Notwithstanding anything in this Agreement to the contrary, if the Company notifies the Administrative Agent not later than 1:00 p.m. (Chicago time) one (1) Business Day prior to any interest payment date subject to Section 4.2(a) above that it elects to capitalize such interest by delivering a notice (which may be by electronic mail) to the effect thereof, then the amount of such interest shall be capitalized and deemed to be a Loan under this Agreement (each such Loan, a “Capitalized Interest Loan”), so long as: (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing, (ii) each of the representations and warranties set forth herein shall be true and correct in all material respects (except to the extent related to an earlier date), and (iii) after giving effect to the capitalization of such interest on such Interest Payment Date, (x) the Revolving Outstandings will not exceed Revolving Loan Availability and (y) each Lender’s Pro Rata Share of the Revolving Outstandings will not exceed the Revolving Commitment of such Lender. Capitalized Interest Loans shall not be subject to the minimum and multiple amount limitations in Section 2.2.2 hereof. Unless otherwise specified by Company in writing, any such Capitalized Interest Loan shall become part of the existing Loan upon which it is capitalized, on the same terms and conditions as such existing Loan. In connection with any notice delivered by the Company pursuant to this Section 4.5 in connection with a Capitalized Interest Loan, the Company shall not be obligated to deliver a Borrowing Base Certificate attached thereto.

 

 

SECTION 5 FEES.

 

5.1       Non-Use Fee.

 

(a)       The Company agrees to pay to the Administrative Agent for the account of each Lender a non-use fee, for the period from the Closing Date to the Termination Date, at the Non-Use Fee Rate in effect from time to time of such Lender’s Pro Rata Share (as adjusted from time to time) of the average daily unused amount of the Revolving Commitment. For purposes of calculating usage under this Section, the Revolving Commitment shall be deemed used to the extent of Revolving Outstandings. Such non-use fee shall be payable in arrears on the fifth (5^th) calendar day immediately following each calendar quarter end and on the Termination Date for any period then ending for which such non-use fee shall not have previously been paid; provided, that if the fifth (5^th) calendar day immediately following each calendar quarter end is not a Business Day, such payment date shall be extended to the following Business Day. The non-use fee shall be computed for the actual number of days elapsed on the basis of a year of 360 days.

 

(b)       Notwithstanding anything in this Agreement to the contrary, if the Company notifies the Administrative Agent not later than 1:00 p.m. (Chicago time) one (1) Business Day prior, or such shorter timeframe as the Administrative Agent may agree in its sole discretion, to any payment date for unused commitment fees pursuant to Section 5.1(a) above that it elects to capitalize such fees as a Loan by delivering a notice (which may be by e-mail) to the effect thereof, then the amount of such fees shall be capitalized and deemed to be a Loan under this Agreement (each such Loan, a “Capitalized Non-Use Fee Loan”); provided that on any such payment date for unused commitment fees pursuant to Section 5.1(a) above, (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing, (ii) each of the representations and warranties with respect to the Company set forth herein shall be true and correct in all material respects on and as of such date, with the same force and effect as if made on and as of such date (except to the extent of changes and facts or circumstances that have been disclosed to the Lenders in writing and do not constitute an Event of Default or to the extent such representations and warranties expressly relate to an earlier or specific date), and (iii) after giving effect to such Capitalized Non-Use Fee Loan, (x) the Revolving Outstandings will not exceed Revolving Loan Availability and (y) each Lender’s Pro Rata Share of the Revolving Outstandings will not exceed the Revolving Commitment of such Lender. Capitalized Non-Use Fee Loans shall not be subject to the minimum and multiple amount limitations in Section 2.2.2 hereof. Unless otherwise specified by the Company in writing, any such Capitalized Non-Use Fee Loan shall become part of the existing Loan upon which it is capitalized, on the same terms and conditions as such existing Loan. In connection with any notice delivered by the Company pursuant to this Section 5.1(b) in connection with a Capitalized Non-Use Fee Loan, the Company shall not be obligated to deliver a Borrowing Base Certificate attached thereto.

 

5.2       Letter of Credit Fees. (a) The Company agrees to pay to the Administrative Agent for the account of each Lender a letter of credit fee for each Letter of Credit equal to the L/C Fee Rate in effect from time to time of such Lender’s Pro Rata Share (as adjusted from time to time) of the undrawn amount of such Letter of Credit (computed for the actual number of days elapsed on the basis of a year of 360 days); provided that, unless the Required Lenders otherwise consent, the rate applicable to each Letter of Credit shall be increased by 2% at any time that an Event of Default exists. Such letter of credit fee shall be payable in arrears on the fifth (5^th) calendar day immediately following each calendar quarter end and on the Termination Date (or such later date on which such Letter of Credit expires or is terminated) for the period from the date of the issuance of each Letter of Credit (or the last day on which the letter of credit fee was paid with respect thereto) to the date such payment is due or, if earlier, the date on which such Letter of Credit expired or was terminated.

 

 

(b)       In addition, with respect to each Letter of Credit, the Company agrees to pay to any Issuing Lender, for its own account, such fees and expenses as such Issuing Lender customarily requires in connection with the issuance, negotiation, processing and/or administration of letters of credit in similar situations, including, without limitation, any fees set forth in a fee letter with such Issuing Lender.

 

(c)       Notwithstanding anything in this Agreement to the contrary, if the Company notifies the Administrative Agent not later than 1:00 p.m. (Chicago time) one (1) Business Day prior, or such shorter timeframe as the Administrative Agent may agree in its sole discretion, to any payment date for Letter of Credit fees pursuant to Section 5.2(a) above that it elects to capitalize such fees as a Loan by delivering a notice (which may be by e-mail) to the effect thereof, then the amount of such fees shall be capitalized and deemed to be a Loan under this Agreement (each such Loan, a “Capitalized Letter of Credit Fee Loan”); provided that on any such payment date for Letter of Credit fees pursuant to Section 5.2(a) above, (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing, (ii) each of the representations and warranties with respect to the Company set forth herein shall be true and correct in all material respects on and as of such date, with the same force and effect as if made on and as of such date (except to the extent of changes and facts or circumstances that have been disclosed to the Lenders in writing and do not constitute an Event of Default or to the extent such representations and warranties expressly relate to an earlier or specific date), and (iii) after giving effect to such Capitalized Letter of Credit Fee Loan, (x) the Revolving Outstandings will not exceed Revolving Loan Availability and (y) each Lender’s Pro Rata Share of the Revolving Outstandings will not exceed the Revolving Commitment of such Lender. Capitalized Letter of Credit Fee Loans shall not be subject to the minimum and multiple amount limitations in Section 2.2.2 hereof. Unless otherwise specified by the Company in writing, any such Capitalized Letter of Credit Fee Loan shall become part of the existing Loan upon which it is capitalized, on the same terms and conditions as such existing Loan. In connection with any notice delivered by the Company pursuant to this Section 5.2(c) in connection with a Capitalized Letter of Credit Fee Loan, the Company shall not be obligated to deliver a Borrowing Base Certificate attached thereto.

 

5.3       Administrative Agent’s Fees. The Company agrees to pay to the Administrative Agent such agent’s fees as are mutually agreed to from time to time by the Company and the Administrative Agent including the fees set forth in the Agent Fee Letters.

 

SECTION 6 INCREASE, REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS.

 

6.1       Increase, Reduction or Termination of the Revolving Commitment.

 

6.1.1    Voluntary Reduction or Termination of the Revolving Commitment. The Company may from time to time on at least five (5) Business Days’ prior written notice received by the Administrative Agent (or such shorter time as the Administrative Agent may reasonably agree in its sole discretion and which shall promptly advise each Lender thereof) permanently reduce the Revolving Commitment to an amount not less than the Revolving Outstandings. Any such reduction shall be in an amount not less than $500,000 or a higher integral multiple of $100,000; provided that, in no event shall a reduction by the Company reduce the Revolving Commitment to $25,000,000 or less (except for a termination of all the Revolving Commitments). Concurrently with any reduction of the Revolving Commitment to zero, the Company shall pay all unpaid interest on the Loans and all unpaid non-use fees and all letter of credit fees and shall Cash Collateralize in full all obligations arising with respect to the Letters of Credit.

 

 

6.1.2   All Reductions of the Revolving Commitment. All reductions of the Revolving Commitment shall reduce the Commitments ratably among the Lenders according to their respective Pro Rata Shares.

 

6.1.3   Increase of the Revolving Commitment. Company may, from time to time, with the written consent of Administrative Agent and each of the existing Lenders that agree to increase their portion of the Revolving Commitment and/or any new Lenders that are joined to this Agreement, in Administrative Agent’s and such Lender’s sole discretion, at any time during the term of this Agreement (but subject to the terms and conditions set forth herein), increase the Revolving Commitment (such increase, a “Facility Increase”) by an amount in the aggregate not to exceed Four Hundred Million Dollars ($400,000,000) (such amount, the “Increase Amount”) for an aggregate Revolving Commitment not to then exceed Five Hundred Million Dollars ($500,000,000). Any such increase shall be in an amount not less than Five Million Dollars ($5,000,000) or a higher integral multiple of One Million Dollars ($1,000,000). Each of the following shall be conditions precedent to any Facility Increase: (i) Company shall have submitted a written request for such Facility Increase to Administrative Agent at least thirty (30) days (or such shorter period as the Administrative Agent may reasonably agree) in advance of Company’s desired effective date of such Facility Increase (which shall promptly advise each Lender), (ii) the Company shall have paid any applicable facility increase fees as set forth in the Agent Fee Letters, (iii) Administrative Agent shall have obtained the written consent from each of the existing Lenders that agree to increase their portion of the Revolving Commitment and/or joinder documents from each new Lender that will be joined to this Agreement with respect to such Facility Increase, and (iv) each new Lender shall have received customary written opinions of counsel for the Company (or a reliance letter in respect thereof).

 

6.2       Prepayments.

 

6.2.1    Voluntary Prepayments. The Company may from time to time prepay the Loans in whole or in part; provided that the Company shall give the Administrative Agent (which shall promptly advise each Lender) notice thereof not later than 11:00 A.M., Chicago time, on the day of such prepayment (which shall be a Business Day), specifying the Loans to be prepaid and the date and amount of prepayment.

 

6.2.2    Mandatory Prepayments. (i) Ten (10) Business Days prior to an Exchange Listing; and (ii) if on any day the Company has knowledge or receives notice that the Revolving Outstandings exceeds the Borrowing Base (including, without limitation, as a result of an Exclusion Event), in each case, the Company shall first prepay the Loans and second Cash Collateralize the outstanding Letters of Credit, in an amount sufficient to eliminate such excess (i) promptly on demand or knowledge thereof, and in any event within five (5) Business Days (or such longer period agreed to by the Administrative Agent in its sole discretion), to the extent such funds are available in the Collateral Account, Blocked Account or any other account maintained by the Company; and (ii) otherwise, to the extent that it is necessary for the Company to issue a Capital Call to fund such required payment, the Company shall be permitted to issue a Capital Call within five (5) Business Days (or such longer period agreed to by the Administrative Agent in its sole discretion) of such demand or knowledge and such Capital Call must require payment by Investors within eight (8) Business Days after the date thereof. Company shall make or cause such required payment to be made promptly, and in any event within two (2) Business Days, after the related Capital Contributions are received.

 

 

6.3       Manner of Prepayments.

 

6.3.1    All Prepayments. Each voluntary partial prepayment shall be in a principal amount of $200,000 or a higher integral multiple of $50,000. Any partial prepayment of a LIBOR Loan shall be subject to the proviso to Section 2.2.3(a). Any prepayment of a LIBOR Loan on a day other than the last day of an Interest Period therefor shall include interest on the principal amount being repaid and shall be subject to Section 8.4. Except as otherwise provided by this Agreement, all principal payments in respect of the Loans shall be applied first, to repay outstanding Base Rate Loans and then to repay outstanding LIBOR Rate Loans in direct order of Interest Period maturities.

 

6.4       Repayments of Loans. The Loans of each Lender shall be paid in full and the Revolving Commitment shall terminate on the Termination Date.

 

SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.

 

7.1       Making of Payments. All payments of principal or interest on the Notes, and of all fees, shall be made by the Company to the Administrative Agent in immediately available funds at the office specified by the Administrative Agent not later than noon, Chicago time, on the date due; and funds received after that hour shall be deemed to have been received by the Administrative Agent on the following Business Day. The Administrative Agent shall promptly remit to each Lender its share of all such payments received in collected funds by the Administrative Agent for the account of such Lender. All payments under this Section 7.1 shall be made by the Company without setoff, counterclaim or other defense.

 

7.2       Application of Certain Payments. So long as no Unmatured Event of Default or Event of Default has occurred and is continuing, (a) payments matching specific scheduled payments then due shall be applied to those scheduled payments and (b) voluntary and mandatory prepayments shall be applied as set forth in Sections 6.2 and 6.3. After the occurrence and during the continuance of an Event of Default or Unmatured Event of Default, all amounts collected or received by the Administrative Agent or any Lender as proceeds from the sale of, or other realization upon, all or any part of the collateral shall be applied as the Administrative Agent shall determine in its discretion. Concurrently with each remittance to any Lender of its share of any such payment, the Administrative Agent shall advise such Lender as to the application of such payment.

 

7.3       Due Date Extension. If any payment of principal or interest with respect to any of the Loans, or of any fees, falls due on a day which is not a Business Day, then such due date shall be extended to the immediately following Business Day (unless, in the case of a LIBOR Loan, such immediately following Business Day is the first Business Day of a calendar month, in which case such due date shall be the immediately preceding Business Day) and, in the case of principal, additional interest shall accrue and be payable for the period of any such extension.

 

7.4       Setoff. The Company agrees that the Administrative Agent and each Lender have all rights of set-off and bankers’ lien provided by applicable law, and in addition thereto, the Company agrees that at any time any Event of Default exists, the Administrative Agent and each Lender may apply to the payment of any Obligations of the Company hereunder, whether or not then due, any and all balances, credits, deposits, accounts or moneys of the Company then or thereafter with the Administrative Agent or such Lender.

 

7.5       Proration of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of offset or otherwise), on account of (a) principal of or interest on any Loan (but excluding (i) any payment pursuant to Section 8.7 or 15.6 and (ii) payments of interest on any Affected Loan) or (b) its participation in any Letter of Credit in excess of its applicable Pro Rata Share of payments and other recoveries obtained by all Lenders on account of principal of and interest on the Loans (or such participation) then held by them, then such Lender shall purchase from the other Lenders such participations in the Loans (or sub-participations in Letters of Credit) held by them as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided that if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery.

 

 

 

7.6       Taxes.

 

(a)       All payments made by the Company hereunder or under any Loan Documents shall be made without deduction or withholding for any Taxes, expect as required by applicable law.

 

(b)       If any applicable law (as determined in the Withholding Agent’s good faith discretion) requires the deduction or withholding of any Taxes from any such payment by a Withholding Agent, the applicable Withholding Agent shall be entitled to make such deduction or withholding and, if such Tax is an Indemnified Tax, then the sum payable by the Company shall be increased as necessary so that after the deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 7.6(b)) the applicable Lender or Administrative Agent receives an amount equal to the sum it would have received had no such deduction or withholding been made. To the extent the Company withholds or deducts any Taxes on payments hereunder or under any Loan Document, the Company shall pay the full amount deducted or withheld to the relevant taxing authority within the time allowed for payment under applicable law and shall deliver to the Administrative Agent within thirty (30) days after it has made payment to such authority a receipt issued by such authority (or other evidence satisfactory to the Administrative Agent) evidencing the payment of all amounts so required to be deducted or withheld from such payment.

 

(c)       Without duplication of clause (a) and (b) above, the Company shall indemnify each Lender and Administrative Agent, within ten (10) days after demand therefore, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such person or required to be withheld or deducted from a payment to such person and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Government Authority. A certificate prepared in good faith as to the amount of such payment by such Lender or the Administrative Agent shall be conclusive absent manifest error.

 

(d)           (i)                To the extent permitted by applicable law, each Lender that is not a United States person within the meaning of Code section 7701(a)(30) (a “Non-U.S. Participant”) shall deliver to the Company and the Administrative Agent on or prior to the Closing Date (or in the case of a Lender that is an Assignee, on the date of such assignment to such Lender) whichever of the following is applicable:

 

  (A)             with respect to such Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, two accurate and complete copies of IRS Forms W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, two accurate and complete copies of IRS Forms W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

 

(B)              two accurate and complete copies of IRS Form W-8ECI;

 

(C)              to the extent such Lender is not the beneficial owner, two accurate and complete copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; or

 

(D)            if such Lender is claiming a complete exemption from withholding pursuant to Code sections 871(h) or 881(c), the Lender shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN or W-8BEN-E, as applicable) a certificate in form and substance reasonably acceptable to Administrative Agent (any such certificate, a “Withholding Certificate”) to the effect that such Lender is not a “bank” within the meaning of Code section 881(c)(3)(A), a “10 percent shareholder” of the Company within the meaning of Code section 881(c)(3)(B), or a “controlled foreign corporation” described in Code section 881(c)(3)(C).

 

(E)            Each Lender that is a Non-U.S. Participant shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Non-U.S. Participant becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made.

 

In addition, each Lender that is a Non-U.S. Participant agrees that from time to time after the Closing Date (or in the case of a Lender that is an Assignee, after the date of the assignment to such Lender), when a lapse in time (or change in circumstances) renders the prior certificates hereunder obsolete or inaccurate in any material respect, such Lender shall, to the extent permitted under applicable law, deliver to the Company and the Administrative Agent two new and accurate and complete signed copies of IRS Forms W-8BEN, W-8BEN-E, W-8ECI, or W-8IMY (or any successor or other applicable forms prescribed by the IRS), and if applicable, a new Withholding Certificate, to confirm or establish the entitlement of such Lender to an exemption from, or reduction in, United States withholding Tax on payments to be made hereunder or any Loan, or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.

 

              (ii)               If a payment made to a Lender under this Agreement or under any other Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable compliance obligations under FATCA, such Lender shall deliver to the Company and the Administrative Agent at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 7.6(d)(ii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

              (iii)              Each Lender that is not a Non-U.S. Participant shall provide two properly completed and duly executed copies of IRS Form W-9 (or any successor or other applicable form) to the Company and the Administrative Agent certifying that such Lender is exempt from United States backup withholding Tax. To the extent that a form provided pursuant to this Section 7.6(d)(iii) is rendered obsolete or inaccurate in any material respect as result of a change in circumstances with respect to the status of a Lender, such Lender shall, to the extent permitted by applicable law, deliver to the Company and the Administrative Agent revised forms necessary to confirm or establish the entitlement to such exemption from United States backup withholding Tax.

 

 

(e)       The Administrative Agent (and any assignee or successor) will deliver, to the Company, on or prior to the execution and delivery of this Agreement (or, assignment or succession, if applicable), either (i) (A) two (2) executed copies of IRS Form W-8ECI or IRS Form W-8BEN-E, as applicable, with respect to any amounts payable to the Administrative Agent for its own account and (B) two (2) duly completed copies of IRS Form W-8IMY (certifying that it is either a “qualified intermediary” or a “U.S. branch”) for the amounts the Administrative Agent receives for the account of others, or (ii) two (2) executed copies of IRS Form W-9, and in each case of (i) and (ii), with the effect that the Company can make payments to the Administrative Agent without deduction or withholding of any Taxes imposed by the United States.

 

(f)        Each Lender agrees to indemnify the Administrative Agent and hold the Administrative Agent harmless for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Company has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Company to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 15.7(b) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any related liabilities (including penalties, interest, additions to Tax and expenses, and any Taxes imposed by jurisdiction on amounts payable to the Administrative Agent under this Section 7.6) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent under this clause (f). This indemnification shall be made within ten (10) days from the date the Administrative Agent makes demand therefor.

 

(g)       If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This clause (g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(h)       Each party’s obligations under this Section 7.6 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

 

SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.

 

8.1       Increased Costs. (a) If any Change in Law: (i) shall impose, modify or deem applicable any reserve (including any reserve imposed by the FRB, but excluding any reserve included in the determination of the LIBOR Rate pursuant to Section 4), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by any Lender; (ii) subject any Lender or Administrative Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (ii) through (iv) of the definition of Excluded Taxes and (C) with respect to any Lender or Administrative Agent, Taxes imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profit Taxes as a result of a present or former connection between such Lender or Administrative Agent and the jurisdiction imposing such Tax (other than connections arising from such Lender or Administrative Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan document)) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) shall impose on any Lender any other condition (other than Taxes) affecting its LIBOR Loans, its Note or its obligation to make LIBOR Loans; and the result of anything described in clauses (i) and (ii) above is to increase the cost to (or to impose a cost on) such Lender (or any LIBOR Office of such Lender) of making or maintaining any LIBOR Loan, or to reduce the amount of any sum received or receivable by such Lender (or its LIBOR Office) under this Agreement or under its Note with respect thereto, then upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Company shall pay directly to such Lender such additional amount as will compensate such Lender for such increased cost or such reduction, so long as such amounts have accrued on or after the day which is 270 days prior to the date on which such Lender first made demand therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270 day period referred to above shall be extended to include the period of retroactive effect thereof).

 

(b)       Capital Requirements. If any Lender shall reasonably determine that any Change in Law regarding capital adequacy, has or would have the effect of reducing the rate of return on such Lender’s or any Person controlling such Lender’s capital as a consequence of such Lender’s obligations hereunder or under any Letter of Credit to a level below that which such Lender or such controlling Person could have achieved but for such Change in Law (taking into consideration such Lender’s or such controlling Person’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Company shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction so long as such amounts have accrued on or after the day which is 270 days prior to the date on which such Lender first made demand therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270 day period referred to above shall be extended to include the period of retroactive effect thereof).

 

 

8.2       Basis for Determining Interest Rate Inadequate or Unfair. If:

 

(a)       the Administrative Agent reasonably determines (which determination shall be binding and conclusive on the Company) that by reason of circumstances affecting the interbank LIBOR market adequate and reasonable means do not exist for ascertaining the applicable LIBOR Rate; or

 

(b)           the Required Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Lenders of maintaining or funding LIBOR Loans for such Interest Period (taking into account any amount to which such Lenders may be entitled under Section 8.1) or that the making or funding of LIBOR Loans has become impracticable as a result of an event occurring after the date of this Agreement which in the opinion of such Lenders materially affects such Loans;

 

then the Administrative Agent shall promptly notify the other parties thereof and, so long as such circumstances shall continue, (i) no Lender shall be under any obligation to make or convert any Base Rate Loans into LIBOR Loans and (ii) on the last day of the current Interest Period for each LIBOR Loan, such Loan shall, unless then repaid in full, automatically convert to a Base Rate Loan.

 

8.3       Changes in Law Rendering LIBOR Loans Unlawful. If any change in, or the adoption of any new, law or regulation, or any change in the interpretation of any applicable law or regulation by any governmental or other regulatory body charged with the administration thereof, should make it (or in the good faith judgment of any Lender cause a substantial question as to whether it is) unlawful for any Lender to make, maintain or fund LIBOR Loans, then such Lender shall promptly notify each of the other parties hereto and, so long as such circumstances shall continue, (a) such Lender shall have no obligation to make or convert any Base Rate Loan into a LIBOR Loan (but shall make Base Rate Loans concurrently with the making of or conversion of Base Rate Loans into LIBOR Loans by the Lenders which are not so affected, in each case in an amount equal to the amount of LIBOR Loans which would be made or converted into by such Lender at such time in the absence of such circumstances) and (b) on the last day of the current Interest Period for each LIBOR Loan of such Lender (or, in any event, on such earlier date as may be required by the relevant law, regulation or interpretation), such LIBOR Loan shall, unless then repaid in full, automatically convert to a Base Rate Loan. Each Base Rate Loan made by a Lender which, but for the circumstances described in the foregoing sentence, would be a LIBOR Loan (an “Affected  Loan”) shall remain outstanding for the period corresponding to the LIBOR Loan which such Affected Loan would be absent such circumstances.

 

8.4       Funding Losses. The Company hereby agrees that upon demand by any Lender (which demand shall be accompanied by a statement setting forth the basis for the amount being claimed, a copy of which shall be furnished to the Administrative Agent), the Company will indemnify such Lender against any net loss or expense which such Lender may sustain or incur (including any net loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain any LIBOR Loan), as reasonably determined by such Lender, as a result of (a) any payment, prepayment or conversion of any LIBOR Loan of such Lender on a date other than the last day of an Interest Period for such Loan (including any conversion pursuant to Section 8.3) or (b) any failure of the Company to borrow, convert or continue any Loan on a date specified therefor in a notice of borrowing, conversion or continuation pursuant to this Agreement. For this purpose, all notices to the Administrative Agent pursuant to this Agreement shall be deemed to be irrevocable.

 

8.5       Right of Lenders to Fund through Other Offices. Each Lender may, if it so elects, fulfill its commitment as to any LIBOR Loan by causing a foreign branch or Affiliate of such Lender to make such Loan; provided that in such event for the purposes of this Agreement such Loan shall be deemed to have been made by such Lender and the obligation of the Company to repay such Loan shall nevertheless be to such Lender and shall be deemed held by it, to the extent of such Loan, for the account of such branch or Affiliate and provided further that no such foreign branch or Affiliate of such Lender shall be entitled to any greater indemnification under Section 7.6 than that to which the applicable Lender was entitled on the date on which such Loan was made. Any exercise by a Lender of the option to cause a foreign branch or Affiliate of such Lender to make a LIBOR Loan shall not affect the obligation of the Company to repay such Loan in accordance with the terms of this Agreement.

 

 

8.6       Discretion of Lenders as to Manner of Funding. Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit, it being understood, however, that for the purposes of this Agreement all determinations hereunder shall be made as if such Lender had actually funded and maintained each LIBOR Loan during each Interest Period for such Loan through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the LIBOR Rate for such Interest Period.

 

8.7       Mitigation of Circumstances; Replacement of Lenders. (a) Each Lender shall promptly notify the Company and the Administrative Agent of any event of which it has knowledge which will result in, and will use reasonable commercial efforts available to it (and not, in such Lender’s sole judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by the Company to pay any amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any circumstances described in Section 8.2 or 8.3 (and, if any Lender has given notice of any such event described in clause (i) or (ii) above and thereafter such event ceases to exist, such Lender shall promptly so notify the Company and the Administrative Agent). Without limiting the foregoing, each Lender will designate a different funding office if such designation will avoid (or reduce the cost to the Company of) any event described in clause (i) or (ii) above and such designation will not, in such Lender’s sole judgment, be otherwise disadvantageous to such Lender.

 

(b)       If the Company becomes obligated to pay additional amounts to any Lender pursuant to Section 7.6 or 8.1, any Lender gives notice of the occurrence of any circumstances described in Section 8.2 or 8.3, or if any Lender is a Defaulting Lender, the Company may designate another bank which is acceptable to the Administrative Agent and the Issuing Lenders in their reasonable discretion (such other bank being called a “Replacement Lender”) to purchase the Loans of such Lender and such Lender’s rights hereunder, without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the outstanding principal amount of the Loans payable to such Lender plus any accrued but unpaid interest on such Loans and all accrued but unpaid fees owed to such Lender and any other amounts due and payable to such Lender under this Agreement, and to assume all the obligations of such Lender hereunder, and, upon such purchase and assumption (pursuant to an Assignment Agreement), such Lender shall no longer be a party hereto or have any rights hereunder (other than rights with respect to indemnities and similar rights applicable to such Lender prior to the date of such purchase and assumption) and shall be relieved from all obligations to the Company hereunder, and the Replacement Lender shall succeed to the rights and obligations of such Lender hereunder.

 

8.8       Conclusiveness of Statements; Survival of Provisions. Determinations and statements of any Lender pursuant to Section 8.1, 8.2, 8.3 or 8.4 shall be conclusive absent demonstrable error. Lenders may use reasonable averaging and attribution methods in determining compensation under Sections 8.1 and 8.4, and the provisions of such Sections shall survive repayment of the Obligations, cancellation of any Notes, expiration or termination of the Letters of Credit and termination of this Agreement.

 

8.9       Effect of Benchmark Transition Event.

 

(a)       Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, Administrative Agent (without, except as specifically provided in the two following sentences,

 

 

 

any action or consent by any other party to this Agreement) may amend this Agreement to replace the LIBOR Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (Chicago time) on the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to all Lenders and Company so long as Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising Required Lenders or the Company. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Company and Lenders comprising Required Lenders have delivered to Administrative Agent written notice that Company and such Required Lenders accept such amendment. No replacement of the LIBOR Rate with a Benchmark Replacement pursuant to this Section 8.9 will occur prior to the applicable Benchmark Transition Start Date.

 

(b)                Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

 

(c)               Notices; Standards for Decisions and Determinations. Administrative Agent will promptly notify Company and Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Administrative Agent or Lenders pursuant to this Section 8.9, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 8.9.

 

(d)                Benchmark Unavailability Period. Upon Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, Company will be deemed to have converted any pending request for a LIBOR Loan, and any conversion to or continuation of any LIBOR Loans to be made, converted or continued during any Benchmark Unavailability Period into a request for a borrowing of or conversion to Base Rate Loans.

 

(e)                Certain Defined Terms. As used in this Section 8.9:

 

(A)              “Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by Administrative Agent and the Company giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBOR Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

 

(B)              “Benchmark Replacement Adjustment” means, with respect to any replacement of the LIBOR Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

 

 

(C)            “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

 

(D)            “Benchmark Replacement Date” means the earlier to occur of the following events with respect to the LIBOR Rate: (i) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBOR Rate permanently or indefinitely ceases to provide the LIBOR Rate; or (ii) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

 

(E)             “Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBOR Rate: (1) a public statement or publication of information by or on behalf of the administrator of the LIBOR Rate announcing that such administrator has ceased or will cease to provide the LIBOR Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate; (2) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBOR Rate, a resolution authority with jurisdiction over the administrator for the LIBOR Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBOR Rate, which states that the administrator of the LIBOR Rate has ceased or will cease to provide the LIBOR Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate; or (3) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate announcing that the LIBOR Rate is no longer representative.

 

(F)             “Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by Administrative Agent or Required Lenders, as applicable, by notice to Company, Administrative Agent (in the case of such notice by Required Lenders) and Lenders.

 

(G)            “Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate and solely to the extent that the LIBOR Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder in accordance with Section 8.9 and (y) ending at the time that a Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder pursuant to Section 8.9.

 

 

(H)            “Early Opt-in Election” means the occurrence of: (1) (i) a determination by Administrative Agent or (ii) a notification by Required Lenders to Administrative Agent (with a copy to Company) that Required Lenders have determined, that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in this Section 8.9, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBOR Rate, and (2) (i) the election by Administrative Agent or (ii) the election by Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by Administrative Agent of written notice of such election to Company and Lenders or by Required Lenders of written notice of such election to Administrative Agent.

 

(I)             “Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

 

(J)             “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

 

(K)           “SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

 

(L)           “Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

(M)           “Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

 

SECTION 9 REPRESENTATIONS AND WARRANTIES.

 

To induce the Administrative Agent and the Lenders to enter into this Agreement and to induce the Lenders to make Loans and participate in Letters of Credit hereunder and the Issuing Lenders to issue Letters of Credit hereunder, the Company represents and warrants to the Administrative Agent and the Lenders that:

 

9.1      Status. The Company is duly organized, validly existing and in good standing under the laws of the state of its incorporation and is qualified to do business and is in good standing in each jurisdiction in which the ownership of its assets or the conduct of its business requires qualification as a foreign entity, other than those jurisdictions with respect to which the failure to be so qualified and in good standing would not reasonably be expected to have a Material Adverse Effect.

 

9.2      Authority. This Agreement and each of the other Loan Documents have been duly authorized and, upon execution and delivery, will constitute legal, valid and binding agreements and obligations of the Company, enforceable in accordance with their respective terms.

 

 

9.3       Company. In Schedule 9.3, as of the date hereof: (i) the full and correct name; (ii) the chief executive office and principal place of business; (iii) state of incorporation; and (iv) all trade names, for the Company are complete and accurate.

 

9.4      Constituent Documents. Each Constituent Document delivered to the Administrative Agent and the Lenders is a true, correct and complete copy of such Constituent Document.

 

9.5      Solvency. The Company is financially solvent such that the total value of its assets, including unfunded Capital Contributions and Capital Commitments, exceeds its liabilities (contingent and non-contingent) and the Company is able to pay its debts as they come due.

 

9.6      No Conflicts or Consents. The execution, delivery and performance by the Company of this Agreement and the other Loan Documents and the granting of any Liens pursuant to the Loan Documents shall not: (i) violate in any material respect any Governmental Requirements applicable to the Company, including, without limitation, the Investment Company Act or any rules, regulations or orders issued by the SEC thereunder; (ii) constitute a breach of any provision contained in the Constituent Documents of the Company or any Subscription Agreement; or (iii) violate in any material respect any agreement to which the Company is now a party or by which the Company may be bound. No consent, approval, authorization or order of any court or Governmental Authority, Investor or third party is required in connection with the execution and delivery by the Company of the Loan Documents or to consummate the transactions contemplated hereby or thereby, including its Constituent Documents, except, in each case, for that which has already been waived or obtained.

 

9.7       Financial Condition; Full Disclosure. Beginning with respect to the quarter ending December 31, 2019, the Company will or have delivered to the Administrative Agent the most recently available copies of the financial statements and reports described in Section 10.18 and Section 10.19 and the related statement of income, in each case certified by a Senior Officer to fairly present the financial condition of the Company as of the applicable date of delivery. To the knowledge of the Company and based upon its good faith judgment, there is no fact regarding the Company that has not been disclosed to the Administrative Agent in writing which could reasonably be expected to have a Material Adverse Effect. All written information heretofore furnished by the Company, in connection with this Agreement, the other Loan Documents or any transaction contemplated hereby is, and all such information hereafter furnished (in each case, as modified or supplemented by other information so furnished) will be, when taken as a whole, to the knowledge of the Company, true and correct in all material respects on the date as of which such information is stated or deemed stated; provided that, with respect to any projected financial information, the Company represents only that such information and estimates were prepared in good faith based upon assumptions believed to be reasonable at the time made.

 

9.8       Lawsuits. (i) As of the Closing Date, there is no material lawsuit, tax claim or adjustment, or other dispute (“Proceeding”), pending or threatened in writing against the Company, its property or any of its businesses, or the Collateral and (ii) as of any borrowing, conversion or continuation of a Loan or issuance of a Letter of Credit after the Closing Date, there are no such Proceedings pending or threatened in writing, against the Company, other than any such Proceeding that could not reasonably be expected to cause a Material Adverse Effect.

 

9.9       Compliance and Taxes. The Company is in compliance with all Governmental Requirements where the failure to comply could not reasonably be expected to cause a Material Adverse Effect and has satisfied, prior to delinquency, all taxes due or payable by the Company or assessed on the Collateral.

 

 

9.10    Investor Documents. Each Investor has executed a Subscription Agreement, a copy of which has been provided to the Administrative Agent. The Company has executed and delivered a Capital Commitment Confirmation to each Investor. The Company has delivered to the Administrative Agent either (i) a copy of each Capital Commitment Confirmation or (ii) a report substantially similar to the spreadsheet delivered to the Administrative Agent on the Closing Date that includes the relevant information related to delivery of each Capital Commitment Confirmation. A copy of each Side Letter that has been entered into, if any, has been provided to the Administrative Agent. For each Investor, the Bylaws and its Subscription Agreement (and any related Side Letter, if applicable), set forth its entire agreement regarding its Capital Commitment.

 

9.11    Transaction. The Company is not engaged in the business of extending credit for the purpose of purchasing or carrying any “margin stock” (as defined in Regulation G, T, U or X) in violation of Regulation U, and no part of the proceeds of any Loan shall be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of Regulation U, unless such use is approved in writing by the Administrative Agent and Required Lenders or otherwise expressly contemplated by the Loan Documents. The Company does not intend to treat any Loan and related transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4).

 

9.12    Sanctions; Patriot Act and FCPA Compliance.

 

(a)                The Company is not, and to the Company’s actual knowledge no Person who owns a majority interest in the Company is (i) a Sanctioned Person, (ii) engages in any dealings or transactions prohibited by Sanctions, or is otherwise associated with any Sanctioned Person in any manner violative of Sanctions,. No proceeds of any Loan will be used, directly or indirectly to the knowledge of the Company, for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person or in any Sanctioned Country, to the extent such activities would result in a violation of any applicable Sanctions by any party to this Credit Agreement

 

(b)                In connection with this Agreement, the Company is in compliance in all material respects with the Patriot Act, the Bank Secrecy Act of 1970, as amended (“BSA”) and other anti-money laundering laws and regulations, in each case, to the extent applicable to the Company. No proceeds of any Loan will be used, directly or to the knowledge of the Company indirectly, for payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts, or anything else of value, to any person in violation of the United States Foreign Corrupt Practices Act of 1977 as amended.

 

9.13    No Defaults. No event has occurred and is continuing, to the Company’s knowledge, which constitutes an Event of Default or an Unmatured Event of Default, except as disclosed to the Administrative Agent in writing.

 

9.14    Title to Assets; Priority of Liens. The Company has and at all times will have: (i) good, marketable and indefeasible title to the Collateral, free and clear of all Liens except Permitted Liens; and (ii) the right to grant the security interest in the Collateral. The Collateral Documents create or will create (upon the completion of any relevant filings), as security for the Obligations, valid and enforceable, perfected first priority security interests in and Liens on all of the Collateral in favor of the Administrative Agent for the benefit of the Secured Parties, subject to no other Liens (other than Permitted Liens), except as enforceability may be limited by Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law). Such security interests in and Liens on the Collateral shall be superior to and prior to the rights of all third parties in such Collateral, and, other than in connection with any future Change in Law or in the Company’s name, identity or structure, or its jurisdiction of organization, as the case may be, no further recordings or filings (other than those contemplated by this Agreement and the Collateral Documents) are required in connection with the creation, perfection or enforcement of such security interests and Liens, other than the filing of continuation statements in accordance with applicable law.

 

 

9.15    No Offsets or Defenses. To the Company’s knowledge, the Company knows of no default or circumstance which with the passage of time and/or giving of notice, could constitute an event of default under its Constituent Documents, any Subscription Agreement or Side Letter which would constitute a defense to the obligations of the Investors to make Capital Contributions to the Company, pursuant to a Capital Call in accordance with the Subscription Agreements or the Bylaws, and has no knowledge of any claims of offset or any other claims of the Investors against the Company which would or could diminish or adversely affect the obligations of the Investors to make Capital Contributions and fund Capital Calls in accordance with the Subscription Agreements (and any related Side Letters) or the Bylaws.

 

9.16     Investment Company Compliance; ERISA.

 

(a)                The Company: is not and shall not be required to register as an “investment company” under the Investment Company Act or undertake as one of its important activities extending credit to purchase or carry margin stock, or use the proceeds of any Loan for that purpose in violation of Regulation U; is not treated as “plan assets” subject to ERISA or Section 4975 of the Code.

 

(b)                The Company has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC.

 

(c)                None of the transactions contemplated by this Agreement will constitute a Prohibited Transaction (as described in ERISA or Section 4975 of the Code). Less than 25% of the total value of each class of equity interests in the Company are held by ERISA Investors. The Company has not established, maintains, contributes to, or has any liability (contingent or otherwise, including any liability as a result of a member of the Controlled Group) with respect to any Pension Plan.

 

9.17     Enforceable Obligations. This Agreement, each Note and the other Loan Documents to which the Company is a party are the legal and binding obligations of the Company, enforceable in accordance with their respective terms, subject to Debtor Relief Laws, where applicable, and general equitable principles (whether considered in a proceeding in equity or at law).

 

9.18    Capital Commitments and Capital Contributions. No Capital Calls have been delivered to any Investors other than any that have been disclosed in writing to the Administrative Agent. As of the Closing Date, the aggregate amount of the Capital Commitments of each Investor is set forth on Schedule 9.18 hereto; and the aggregate unfunded Capital Commitment that could be subject to a Capital Call is set forth on Schedule 9.18 hereto.

 

9.19    Beneficial Ownership. As of the Closing Date, the information included in any Beneficial Ownership Certification in relation to the Company provided on or prior to the Closing Date to Administrative Agent in connection with this Agreement is true and correct in all respects.

 

SECTION 10 COVENANTS.

 

Until the expiration or termination of the Commitments and thereafter until all Obligations (other than contingent indemnification obligations which are not threatened or pending) hereunder and under the other Loan Documents are paid in full and all Letters of Credit have been terminated, the Company agrees that, unless at any time the Required Lenders shall otherwise expressly consent in writing:

 

 

10.1    Accounting Methods. The Company shall: (i) maintain a standard and modern system of accounting which is in accordance with GAAP consistently applied during the term of this Agreement; (ii) not modify or change its method of accounting unless required to modify or change its method to conform with GAAP; and (iii) ensure that its Books are accurate and complete in a manner consistent with past practices.

 

10.2     Existence. The Company shall: (i) maintain its existence in good standing under the laws of the state of its organization; (ii) maintain its qualification as a foreign entity in each jurisdiction in which the nature of its business requires such qualification (other than those jurisdictions with respect to which the failure to be so qualified and in good standing would not reasonably be expected to have a Material Adverse Effect) and (iii) not merge with any other entity.

 

10.3    Use of Proceeds. Use the proceeds of the Loans and the Letters of Credit, solely (i) to bridge the timing of Capital Calls made to the Investors, (ii) the disbursements of capital for investments permitted hereunder, (iii) for working capital purposes and (iv) for other general business purposes, in each case, in accordance with the Constituent Documents of the Company.

 

10.4    Change. The Company shall not: (i) change its name, state of formation, location of its business or dissolve, suspend business, liquidate, or merge with any other entity without five (5) Business Days’ subsequent written notice to the Administrative Agent; or (ii) transfer or sell any of its assets other than in the ordinary course of business.

 

10.5    Further Assurances. The Company shall make, execute or endorse, and acknowledge and deliver or file or cause the same to be done, all such vouchers, invoices, notices, certifications, and additional agreements, undertakings, conveyances, transfers, assignments, financing statements, or other assurances, and shall take any and all such other action, as the Administrative Agent may, from time to time, deem reasonably necessary or desirable in connection with this Agreement or any of the other Loan Documents, the obligations of the Company hereunder or thereunder for better assuring and confirming unto the Secured Parties all or any part of the security for any of such obligations.

 

10.6    Books and Records; Access. Following five (5) Business Days prior written notice to the Company, the Company shall, on no more than one (1) occasion per calendar year so long as no Event of Default has occurred and is continuing, give the Administrative Agent, collectively, on behalf of the Secured Parties, access during ordinary business hours to, and permit such person to examine, copy, or make excerpts from, any and all Books in the possession of the Company at the location identified as the principal office, principal place of business and chief executive office of the Company as set forth on Schedule 9.13 attached hereto and relating to its affairs, and to inspect any of the properties of the Company and to discuss its affairs, finances and condition with its officers and independent accountants; provided that (a) representatives of the Company shall be given the opportunity to participate in any discussions with the independent accountants and (b) so long as no Event of Default has occurred and is continuing, any expenses in connection with any inspection in excess of one (1) occasion per calendar year shall be for the account of the Administrative Agent on behalf of the Secured Parties.

 

10.7    Insurance. The Company shall maintain with financially sound and reputable insurance companies insurance against such casualties, risks and liabilities, in such forms and for such amounts as are consistent with customary practices and standards of its industry in the same or similar locations and the failure of which to maintain could have a Material Adverse Effect.

 

10.8    Maintenance of Properties. The Company shall act prudently and in accordance with customary industry standards in managing or operating its assets, properties, business, and investments (other than with respect to such assets or properties where failure to so act could not reasonably be expected to result in a Material Adverse Effect).

 

 

10.9     Liens. The Collateral shall not be subject to any Liens except Permitted Liens.

 

10.10    ERISA.

 

(a)                The Company shall not permit ERISA Investors to hold 25% or more of the total value of any class of equity interests in the Company.

 

(b)                The Company shall not take any action, or omit to take any action, that would result in the Company’s assets being treated as “plan assets” subject to ERISA or Section 4975 of the Code and shall not permit a Prohibited Transaction (as described in ERISA or Section 4975 of the Code) to occur and no Investor’s investment in the Company shall cause the assets of the Company to be treated as assets of a governmental plan with the meaning of 3(32) of ERISA. The Company shall not establish, maintain, contribute to, or have any liability (contingent or otherwise, including any liability as a result of a member of the Controlled Group) with respect to any Pension Plan.

 

10.11   Solvency. The Company shall remain solvent at all times during the term of this Agreement such that the total value of its assets, including unfunded Capital Contributions and Capital Commitments, will exceed its liabilities (contingent and non-contingent) and the Company will be able to pay its debts as they come due.

 

10.12  Taxes. The Company shall pay when due all taxes (other than taxes being disputed in good faith and adequate reserves therefor have been established in accordance with GAAP).

 

10.13  [Reserved].

 

10.14  Compliance with Applicable Laws. The Company shall at all times comply with and keep in effect all Governmental Permits relating to it, the Collateral, and its other assets. The Company shall at all times comply with and shall cause the Collateral to comply with: (i) all Governmental Requirements, including, without limitation, the Investment Company Act or any rules, regulations or orders issued by the SEC thereunder; (ii) all requirements and orders of all judicial authorities which have jurisdiction over the Company or the Collateral; and (iii) all covenants, conditions, restrictions and other documents relating to the Company or the Collateral. Without limiting the preceding sentence, the Company shall (a) maintain policies and procedures reasonably designed to ensure that no person who owns a majority interest in the Company is a Sanctioned Person, and (b) comply in all material respects with all applicable BSA and other anti-money laundering laws and regulations, in each case, to the extent applicable to the Company.

 

10.15  Notifications. The Company shall promptly notify the Administrative Agent of: (i) of any condition or event which constitutes an Unmatured Event of Default or Event of Default or could reasonably be expected to have a Material Adverse Effect; (ii) any material pending, threatened in writing or imminent litigation, governmental investigations or claims, complaints, actions or prosecutions involving the Company; (iii) solely upon written request of the Administrative Agent or any Lender and no more frequently than quarterly, notice of any change in the information provided in any Beneficial Ownership Certification form most recently delivered to Administrative Agent; and (iv) upon filing for an Exchange Listing.

 

 

10.16  Distributions and Management Fee.

 

(a)                The Company shall not make, pay or declare any Distribution (i) at any time except as permitted pursuant to its Constituent Documents or (ii) in the event that any Loans are outstanding at any time during the existence of an Event of Default or Unmatured Event of Default under Section 13.1.1, 13.1.4 or 13.1.5, provided, that, notwithstanding the foregoing, the Company shall be permitted to make any Distributions determined by the Company in good faith to be required to maintain the status of the Company as a RIC under the Code and such Distributions as may be required to avoid federal excise taxes imposed by the Code.

 

(b)                In the event that any Loans are outstanding at any time during the existence of an Event of Default or Unmatured Event of Default under Section 13.1.1, 13.1.4 or 13.1.5, the Company may distribute to Management Company the Base Management Fee (as defined in the Management Agreement as in effect on the date hereof). For the avoidance of doubt, the Company shall not distribute to Management Company the Incentive Fee (as defined in the Management Agreement as in effect on the date hereof) at any time during the existence of an Event of Default or Unmatured Event of Default under Section 13.1.1, 13.1.4 or 13.1.5.

 

10.17  Blocked Account. The Company shall establish and maintain the Blocked Account with the Administrative Agent.

 

10.18  Quarterly Financial Statements. Within forty-five (45) days of the end of each of the first three Fiscal Quarters of any Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2020), the Company shall deliver to the Administrative Agent and the Lenders a quarterly company prepared consolidated balance sheet and income statement covering Company’s consolidated operations during such Fiscal Quarter.

 

10.19  Annual Financial Statements. Within one hundred and twenty (120) days of the Company’s Fiscal Year end (commencing with the Fiscal Year ending December 31, 2019), the Company shall deliver to the Administrative Agent and the Lenders audited consolidated annual financial statements, certified without adverse reference to going concern value and without qualification by independent auditors of recognized standing selected by the Company and reasonably acceptable to the Administrative Agent.

 

10.20  Investor Reporting. Substantially contemporaneously with the delivery to any Investor, the Company shall deliver to the Administrative Agent and the Lenders copies of all other material financial statements, appraisal reports and notices at any time or from time to time furnished to all Investors by the Company.

 

10.21  Debt. The Company shall not, directly or indirectly, make, create, incur, assume, or permit to exist any (i) Contingent Liability or (ii) any Debt (including Debt under the Loan Documents), in an aggregate amount at any time outstanding that exceeds the unfunded Capital Commitments; provided that the Company shall not incur any Debt except in compliance with its Constituent Documents and each Subscription Agreement.

 

10.22  Business Activities. The Company shall not engage in any line of business other than the businesses engaged in on the date hereof and business reasonably related thereto.

 

10.23  Transactions with Affiliates. The Company shall not enter into or cause, suffer or permit to exist any transaction, arrangement or contract with any of its Affiliates in a manner that would violate the provisions of the Investment Company Act, applicable to business development companies thereunder; provided, that the Company may enter into any transaction, arrangement or contract in accordance with any exemptive relief applicable to the Company that is granted by the SEC, SEC no-action letters or SEC staff guidance.

 

 

10.24  Compliance Certificate. Contemporaneously with the furnishing of the financial information pursuant to Sections 10.18 and 10.19, the Company shall deliver to the Administrative Agent and the Lenders a duly completed Compliance Certificate in the form of Exhibit B with appropriate insertions, dated the date of such financial information and signed by a Senior Officer.

 

10.25   Capital Calls.

 

(a)                In order to secure further the payment and the performance of the Obligations and to effect and facilitate the right of the Secured Parties, the Company shall require that Investors wire transfer to the Collateral Account all monies or sums paid or to be paid by the Investors pursuant to Capital Calls. In addition, the Company shall deposit into the Collateral Account any payments and monies that the Company receives directly from Investors as Capital Contributions.

 

(b)                Contemporaneously with requesting any Capital Calls from any Investor, the Company shall provide the Administrative Agent with notice (in form and content acceptable to the Administrative Agent) of the applicable requests for payment.

 

(c)                The Company shall make a Capital Call of at least ten percent (10%) of aggregate Capital Commitments on an annual basis no later than each anniversary of the Closing Date until fifty percent (50%) of the aggregate Capital Commitments has been called by the Company as a Capital Contribution. The Company shall make a Capital Call of at least two and one-half percent (2.5%) of the aggregate Capital Commitments within 180 days of the Closing Date.

 

10.26  Borrowing Base Certificate. Within (a) five (5) Business Days following the acceptance by the Company of a Capital Commitment of any Investor, (b) five (5) Business Days of the date upon which a Capital Call is requested (or, in the event that multiple Capital Calls are requested concurrently, the date upon which all such Capital Calls are requested), and (c) five (5) Business Days of the date upon which the Company becomes aware of any Exclusion Event with respect to any Institutional Investor, the Company shall deliver to the Administrative Agent and the Lenders a Borrowing Base Certificate.

 

10.27  Investor Documents and Exclusion Events. Within five (5) Business Days of the date of effectiveness thereof, the Company shall provide the Administrative Agent with copies of the Subscription Agreement (and any related Side Letter) and Capital Commitment Confirmation (or such other evidence thereof as set forth in Section 9.10) or any transfer documentation of any new Investor or written evidence of an increase in the Capital Commitment of any existing Investor or any amendments to any Investor’s Side Letter. The Company will promptly notify Administrative Agent in writing upon becoming aware of (x) any Exclusion Event or (y) the existence of any condition or event which, with the lapse of time or giving of notice or both, would cause an Exclusion Event.

 

10.28  Transfers by Investors. The Company shall notify the Administrative Agent of any transfer by any (i) Institutional Investor of all or a portion of its Equity Interest in the Company and/or Capital Commitment at least five (5) Business Days (or such shorter period as may be agreed by the Administrative Agent in its sole reasonable discretion) before the proposed transfer and (ii) Individual Investor of all or a portion of its Equity Interest in the Company and/or Capital Commitment at least five (5) Business Days (or such longer period as may be agreed by the Administrative Agent in its sole reasonable discretion) following the effectiveness of such transfer, and shall, promptly upon receipt thereof, deliver to the Administrative Agent copies of any proposed assignment agreement and other documentation delivered to, or required of such Investor by, the Company. If the transfer by any Investor of all or a portion of its Equity Interest in the Company and/or Capital Commitment to a new Investor would result in a mandatory prepayment pursuant to Section 6.2.2 (due to the transferee not contributing to the Borrowing Base in the same manner or otherwise), such mandatory prepayment shall be calculated and paid to the Lenders prior to the effectiveness of the transfer and such prepayment shall be subject to Section 8.4.

 

 

10.29  Constituent Documents; Side Letters and Subscription Agreements.

 

(a)              Constituent Documents. Except as hereinafter provided, the Company shall not alter, amend, modify, terminate, or change any provision of its Constituent Documents (each, a “Proposed Amendment”) if such Proposed Amendment would (i) amend the provisions specifically relating to the incurrence of Debt, (iii) materially affect in a manner adverse to the Secured Parties, the Company’s or any Investor’s (as applicable) debts, duties, obligations, and liabilities, or the rights, titles, security interests, Liens, powers and privileges of such Person (as applicable), in each case, relating to any Capital Calls, Capital Contributions, Capital Commitments, unfunded Capital Commitments or any other Collateral or any time period applicable thereto, (iv) except as permitted hereunder and by the Bylaws, suspend, reduce or terminate any Investor’s unfunded Capital Commitments or obligation to fund Capital Calls, or (v) otherwise have a material adverse effect on the rights, titles, first priority security interests and Liens, and powers and privileges of any of the Secured Parties hereunder (each, a “Material Amendment”). With respect to any Proposed Amendment, the Company shall notify the Administrative Agent of such proposal (the “Proposed Amendment Notification”). The Administrative Agent shall promptly, but in any event not later than five (5) Business Days from the date on which it has received such Proposed Amendment Notification in accordance with Section 15.3, determine, in its sole discretion without the requirement of obtaining the input of the Lenders and on its good faith belief, whether or not such Proposed Amendment would constitute a Material Amendment and shall promptly notify the Company of its determination. In the event that the Administrative Agent determines that such Proposed Amendment is a Material Amendment, 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), and 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 Company. Subject to Section 15.1, the Lenders shall promptly, but in any event not later than ten (10) Business Days from the date of such notice from the Administrative Agent, deliver their approval or denial thereof. In the event that the Administrative Agent determines that the Proposed Amendment is not a Material Amendment, the Company may make such amendment without the consent of any Lender. Notwithstanding the foregoing, the Company may, without the consent of the Administrative Agent or the Lenders, amend its Constituent Documents: (x) to admit new Investors to the extent permitted by, and in accordance with, this Agreement and the Bylaws; and (y) to reflect transfers of interests in the Company permitted by, and in accordance with, this Agreement; provided that, in each case, the Company shall promptly provide prior written notice to the Administrative Agent of any such amendment. Further, in the event any Constituent Document of the Company is altered, amended, modified or terminated in any respect whatsoever, the Company shall provide the Administrative Agent with copies of each executed, filed or otherwise effective document relating thereto.

 

(b)             Side Letters and Subscription Agreements. Except as hereinafter provided, the Company shall not alter, amend, modify, terminate or change any provision of a Side Letter or a Subscription Agreement, or enter any new Side Letter (each a “Side Letter Amendment” and collectively, the “Side Letter Amendments”), if: such Side Letter Amendment (i) could be elected into by an existing Investor pursuant to the ‘most favored nations’ provision of such existing Investor’s Side Letter, and (ii) would (A) amend the provisions specifically relating to the incurrence of Debt, (B) materially affect in a manner adverse to the Secured Parties, the Company’s or any Investor’s (as applicable) debts, duties, obligations, and liabilities, or the rights, titles, security interests, Liens, powers and privileges of such Person (as applicable), in each case, relating to any Capital Calls, Capital Contributions, Capital Commitments, unfunded Capital Commitments or any other Collateral or any time period applicable thereto, (C) except as permitted hereunder and by the Bylaws, suspend, reduce or terminate any Investor’s unfunded Capital Commitments or obligation to fund Capital Calls, or (D) otherwise have a material adverse effect on the rights, titles, first priority security interests and Liens, and powers and privileges of any of the Secured Parties hereunder. With respect to any such Side Letter Amendment, the Company may in its discretion notify the Administrative Agent of such Side Letter Amendment (a “Side Letter Notification”). If the Company so elects, the Administrative Agent shall promptly, but in any event not later than five (5) Business Days of the date on which it has received such Side Letter Notification determine, in its sole discretion without the requirement of obtaining the input of the Lenders and on its good faith belief, whether or not the proposed Side Letter Amendment would be prohibited by clause (ii) above and shall promptly notify the Company of its determination. In the event that the Administrative Agent determines that the proposed Side Letter Amendment would be prohibited by clause (ii) above, the Company shall not enter such Side Letter Amendment without the written consent of the Administrative Agent. For the avoidance of doubt, in the event such Side Letter Amendment does not fall under both clause (i) and clause (ii) above, the Company is permitted to enter into such Side Letter Amendment without the consent of or notice to the Administrative Agent or the Lenders, even if such Side Letter Amendment would be prohibited by clause (ii). Copies of all Side Letters and Side Letter Amendments shall be provided to the Administrative Agent within five (5) Business Days of their consummation.

 

 

10.30  Capital Commitments. The Company shall not: (i) cancel, reduce, excuse, or abate the Capital Commitment of any Investor without the prior written consent of the Administrative Agent which may be withheld in its sole discretion; or (ii) relieve, excuse, delay, postpone, compromise or abate any Investor from the making of any Capital Contribution (including, for the avoidance of doubt, in connection with any particular investment of the Company); provided, however, the Company may excuse any Investor from funding a Capital Call in compliance with the terms of such Investor’s Subscription Agreement. Absent the occurrence of an Event of Default, Company shall enforce all of its rights under the Bylaws and each Subscription Agreement.

 

10.31  Returned Capital. The Company shall promptly, following notification by the Company to the Investors of any Returned Capital: (i) notify the Administrative Agent in writing of such Returned Capital; (ii) deliver to the Administrative Agent a revised Borrowing Base Certificate modified by the Company reflecting the changes to the Capital Commitments and the unfunded Capital Commitments, resulting from the distribution of the Returned Capital; and (iii) deliver to the Administrative Agent copies of all Capital Return Notices. The effective date on which an Investor’s unfunded Capital Commitment increases by Returned Capital for purposes of this Agreement shall be the date on which the Company has delivered to the Administrative Agent duly completed copies of the items required by this Section 10.31. The parties hereto acknowledge and agree that no Investor shall receive any Returned Capital under the terms of its applicable Subscription Agreement.

 

10.32  RIC and BDC. The Company shall at all times, subject to applicable grace periods set forth in the Code, maintain its status as a RIC under the Code, and as a “business development company” under the Investment Company Act.

 

SECTION 11 [RESERVED].

 

SECTION 12 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.

 

The obligation of each Lender to make its Loans and of the Issuing Lenders to issue Letters of Credit is subject to the following conditions precedent:

 

 

12.1     Initial Credit Extension. The obligation of the Lenders to make the initial Loans and the obligation of the Issuing Lenders to issue their initial Letters of Credit (whichever first occurs) is, in addition to the conditions precedent specified in Section 12.2, subject to the conditions precedent that the Administrative Agent shall have received all of the following, each duly executed and dated as of the Closing Date (or such earlier date as shall be satisfactory to the Administrative Agent), in form and substance reasonably satisfactory to the Administrative Agent (and the date on which all such conditions precedent have been satisfied or waived in writing by the Administrative Agent and the Lenders is called the “Closing Date”):

 

12.1.1  Agreement and Notes. This Agreement and a Note made payable to each Lender if so requested by a Lender.

 

12.1.2  Organizational Agreements. The Company’s (a) charter (or similar formation document), certified by the appropriate governmental authority; (b) good standing certificates in its state of incorporation (or formation); (c) bylaws (or similar governing document); (d) resolutions of its board of directors (or similar governing body) approving and authorizing such Person’s execution, delivery and performance of the Loan Documents to which it is party and the transactions contemplated thereby; and (e) signature and incumbency certificates of its officers executing any of the Loan Documents (it being understood that the Administrative Agent and each Lender may conclusively rely on each such certificate until formally advised by a like certificate of any changes therein), all certified by a Senior Officer as being in full force and effect without modification.

 

12.1.3  Collateral Documents. Each Collateral Document.

 

12.1.4   Opinions of Counsel. Customary written opinions of counsel for the Company.

 

12.1.5   Payment of Fees. Payment by the Company of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Closing Date, together with all Attorney Costs of the Administrative Agent to the extent invoiced prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by the Administrative Agent through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Administrative Agent).

 

12.1.6  Closing Certificate. A certificate executed by a Senior Officer on behalf of the Company certifying the matters set forth in Section 12.2.1 as of the Closing Date.

 

12.1.7  Beneficial Ownership Certification. A completed and duly executed Beneficial Ownership Certification form for the Company.

 

12.1.8  UCCs.

 

(a)                Reports of UCC searches in the jurisdiction of incorporation of the Company, or where a filing has been or would need to be made in order to perfect the Administrative Agent’s first priority security interest on behalf of the Secured Parties in the Collateral, copies of the financing statements on file in such jurisdictions, if any, and evidence that no Liens (other than Permitted Liens) exist, or, if necessary, copies of financing statements, if any, filed on or before the date hereof necessary to terminate all security interests and other rights of any Person in any Collateral previously granted; and

 

(b)                UCC financing statements, UCC financing statement amendments and UCC financing statement terminations, as applicable, on the Closing Date reasonably satisfactory to the Administrative Agent with respect to the Collateral together with written evidence reasonably satisfactory to the Administrative Agent that the same have been filed or submitted for filing in the appropriate public filing office(s) in the Administrative Agent’s reasonable discretion, to perfect, to the extent possible under applicable law, the Secured Parties’ first priority security interest in the Collateral;

 

 

12.1.9  ERISA. A certificate, addressed to the Secured Parties, signed by a Senior Officer on behalf of the Company, certifying that the underlying assets of the Company, do not constitute as “plan assets” subject to ERISA or Section 4975 of the Code because less than 25% of the total value of each class of equity interests in the Company is held by ERISA Investors.

 

12.1.10 Morgan Stanley Capital Commitment. MS Credit Partners Holdings Inc., a Delaware corporation, shall have a Capital Commitment of no less than 20% of the aggregate Capital Commitments up to $200,000,000.

 

12.2      Conditions. The obligation (a) of each Lender to make each Loan and (b) of the Issuing Lenders to issue each Letter of Credit is subject to the following further conditions precedent that:

 

12.2.1   Compliance with Warranties, No Default, etc. Both before and after giving effect to any borrowing and the issuance of any Letter of Credit, the following statements shall be true and correct:

 

(a)                the representations and warranties of the Company set forth in this Agreement and the other Loan Documents shall be true and correct in all respects with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct as of such earlier date);

 

(b)                no Event of Default or Unmatured Event of Default shall have then occurred and be continuing; and

 

(c)                other than as disclosed to the Administrative Agent in writing, the Company has no knowledge that any Investor would be entitled to exercise any withdrawal, excuse or exemption right under the Bylaws, its Subscription Agreement or any Side Letter with respect to any investment being acquired in whole or in part with any proceeds of the related Loan or Letter of Credit (provided that, if the Company has disclosed a potential withdrawal, excuse or exemption right to the Administrative Agent in writing, the excused, withdrawn or exempted portion of the applicable Investor’s unfunded Capital Commitment shall be excluded from the calculation of the Borrowing Base, but the Company shall not be prohibited from such credit extension upon satisfaction of the other conditions therefor).

 

12.2.2  Confirmatory Certificate. The Administrative Agent shall have received (in sufficient counterparts to provide one to each Lender) (a) a Borrowing Base Certificate dated as of the date of such requested Loan or Letter of Credit and (b) if required by the Administrative Agent or any Lender, a certificate dated the date of such requested Loan or Letter of Credit and signed by a duly authorized representative of the Company as to the matters set out in Section 12.2.1 (it being understood that each request by the Company for the making of a Loan or the issuance of a Letter of Credit shall be deemed to constitute a representation and warranty by the Company that the conditions precedent set forth in Section 12.2.1 will be satisfied at the time of the making of such Loan or the issuance of such Letter of Credit), together with such other documents as the Administrative Agent or any Lender may reasonably request in support thereof.

 

12.2.3 Master Letter of Credit Agreement. Solely with respect to the issuance of any Letter of Credit, a counterpart of the Master Letter of Credit Agreement executed by the Company.

  

 

SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT.

 

13.1      Events of Default. Each of the following shall constitute an Event of Default under this Agreement:

 

13.1.1   Payment Defaults.

 

(a)                If the Company falls to make a principal payment, when due, under this Agreement, any Note owed to any Lender.

 

(b)                If the Company falls to make any payment of interest or fees, when due, under this Agreement, any Note owed to any Lender, and such failure shall continue unremedied for a period of two (2) Business Days.

 

13.1.2 Failure to Perform. If the Company fails to perform any obligation or covenant or comply with any requirement under this Agreement or any other Loan Document beyond any applicable cure period.

 

13.1.3 Misrepresentation. If any statement, information, certification, representation or warranty made by the Company to the Administrative Agent and the Lenders, under this Agreement or any of the other Loan Documents is false or misleading in any material respect (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall prove be untrue or inaccurate in all respects) as of the date on which such representation or warranty is made and the adverse effect of the failure of such representation or warranty shall not have been cured within thirty (30) days after the earlier of: (i) written notice thereof has been given by the Administrative Agent to the Company or (ii) a Senior Officer obtains actual knowledge thereof.

 

13.1.4 Insolvency. If a voluntary Insolvency Proceeding is commenced by the Company; or if an involuntary Insolvency Proceeding is commenced against the Company and not dismissed within sixty (60) days.

 

13.1.5 Receivers. If an order, order for relief, judgment or decree shall be entered by any court of competent jurisdiction or other competent authority, without application or consent of the Company, approving a petition to appoint a receiver or similar official for any of the Company’s assets and such order, judgment or decree shall continue unstayed and in effect for a period of sixty (60) days.

 

13.1.6 Injunction. If the Company is enjoined, restrained or in any way prevented by court order from continuing to conduct all or any material part of its business affairs and such order shall continue unstayed and in effect for a period of sixty (60) days.

 

13.1.7 Security. If the validity or priority of the Administrative Agent’s security interest in the Collateral is impaired for any reason.

 

13.1.8 Transfers; Dissolution. If there is a dissolution, termination or liquidation of the Company if the Company is a corporation, partnership, limited liability company or other entity.

 

13.1.9 Lawsuits. If any lawsuit is filed against the Company which, if lost, would impair the Collateral or the Company’s financial condition or ability to repay the Loan.

 

 

13.1.10 Judgments. If any final judgments or arbitration awards for the payment of money are entered against the Company with respect to any litigation or arbitration, in an amount greater than or equal to $50,000,000 and such judgment is not covered by insurance or shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed.

 

13.1.11 Failure to Receive Capital Commitment. If the Company fails to receive, within ten (10) Business Days of when due, any Capital Contribution or payment on any Capital Calls from any Investor(s) individually or collectively holding ten percent (10%) or more of the total Capital Commitments.

 

13.1.12 Debt. If any Debt of the Company in an amount equal to or in excess of $50,000,000 in the aggregate shall become due before its stated maturity by acceleration of the maturity thereof or shall become due by its terms and shall not be promptly paid or extended (after giving effect to any applicable grace period thereof).

 

13.1.13 Termination of Management Company; Change of Control. If (i) Management Company or an Affiliate thereof ceases to act as investment adviser to the Company or (ii) less than 51% of the Equity Interests of Management Company cease to be held directly or indirectly by Morgan Stanley.

 

13.1.1  Exchange Listing. The occurrence of an Exchange Listing.

 

13.1.2  Effect of Event of Default. If any Event of Default described in Sections 13.1.4 or 13.1.5, subject to any applicable grace periods, shall occur in respect of the Company, the Commitments shall immediately terminate and the Loans and all other Obligations hereunder shall become immediately due and payable and the Company shall become immediately obligated to Cash Collateralize all Letters of Credit, all without presentment, demand, protest or notice of any kind; and, if any other Event of Default shall occur and be continuing, the Administrative Agent may (and, upon the written request of the Required Lenders shall) declare the Commitments to be terminated in whole or in part and/or declare all or any part of the Loans and all other Obligations hereunder to be due and payable and/or demand that the Company immediately Cash Collateralize all or any Letters of Credit, whereupon the Commitments shall immediately terminate (or be reduced, as applicable) and/or the Loans and other Obligations hereunder shall become immediately due and payable (in whole or in part, as applicable) and/or the Company shall immediately become obligated to Cash Collateralize the Letters of Credit (all or any, as applicable), all without presentment, demand, protest or notice of any kind. The Administrative Agent shall promptly advise the Company of any such declaration, but failure to do so shall not impair the effect of such declaration. Any cash collateral delivered hereunder shall be held by the Administrative Agent (without liability for interest thereon) and applied to the Obligations arising in connection with any drawing under a Letter of Credit. After the expiration or termination of all Letters of Credit, such cash collateral shall be applied by the Administrative Agent to any remaining Obligations hereunder and any excess shall be delivered to the Company or as a court of competent jurisdiction may elect.

 

SECTION 14 THE AGENT.

 

14.1  Appointment and Authorization. Each Lender and Issuing Lender hereby irrevocably (subject to Section 14.10) appoints, designates and authorizes CIBC Bank USA to take such action on its behalf as Administrative Agent under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the Administrative Agent shall not have any duty or responsibility except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law regardless of whether an Unmatured Event of Default has occurred and is continuing. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

 

 

14.2     Issuing Lenders. The Issuing Lenders shall act on behalf of the Lenders (according to their Pro Rata Shares) with respect to any Letters of Credit issued by them and the documents associated therewith. The Issuing Lenders shall have all of the benefits and immunities (a) provided to the Administrative Agent in this Section 14 with respect to any acts taken or omissions suffered by the Issuing Lenders in connection with Letters of Credit issued by them or proposed to be issued by them and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent”, as used in this Section 14, included the Issuing Lenders with respect to such acts or omissions and (b) as additionally provided in this Agreement with respect to the Issuing Lenders.

 

14.3    Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of a finding by a court of competent jurisdiction in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct.

 

14.4    Exculpation of Administrative Agent. None of the Administrative Agent nor any of its directors, officers, employees or agents shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except to the extent resulting from its own gross negligence or willful misconduct in connection with its duties expressly set forth herein as determined by a final, nonappealable judgment by a court of competent jurisdiction), (b) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, or (c) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by the Company or Affiliate of the Company, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document (or the creation, perfection or priority of any Lien or security interest therein), or for any failure of the Company or any other party to any Loan Document to perform its Obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Company or any of the Company’s Subsidiaries or Affiliates.

 

 

14.5     Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, electronic mail message, affidavit, letter, telegram, facsimile, telex or telephone message, statement 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 counsel to the Company), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, confirmation from the Lenders of their obligation to indemnify the Administrative Agent 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, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon each Lender. For purposes of determining compliance with the conditions specified in Section 12, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

14.6    Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Company referring to this Agreement, describing such Event of Default or Unmatured Event of Default and stating that such notice is a “notice of default”. The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to such Event of Default or Unmatured Event of Default as may be requested by the Required Lenders in accordance with Section 13; provided that unless and until the Administrative Agent has received any such request, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or Unmatured Event of Default as it shall deem advisable or in the best interest of the Lenders.

 

14.7    Credit Decision. Each Lender acknowledges that the Administrative Agent has not made any representation or warranty to it, and that no act by the Administrative Agent hereafter taken, including any consent and acceptance of any assignment or review of the affairs of the Company, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender as to any matter, including whether the Administrative Agent has disclosed material information in its possession. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Company, and made its own decision to enter into this Agreement and to extend credit to the Company hereunder. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent 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 the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Company. Except for notices, reports and other documents expressly herein required to be furnished to the Lenders by the Administrative Agent, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness of the Company which may come into the possession of the Administrative Agent.

 

 

14.8    Indemnification. Whether or not the transactions contemplated hereby are consummated, each Lender shall indemnify upon demand the Administrative Agent and its directors, officers, employees and agents (to the extent not reimbursed by or on behalf of the Company and without limiting the obligation of the Company to do so), according to its applicable Pro Rata Share, from and against any and all Indemnified Liabilities (as hereinafter defined); provided that no Lender shall be liable for any payment to any such Person of any portion of the Indemnified Liabilities to the extent determined by a final, nonappealable judgment by a court of competent jurisdiction to have resulted from the applicable Person’s own gross negligence or willful misconduct. No action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs and Taxes) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Company. The undertaking in this Section shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit, any foreclosure under, or modification, release or discharge of, any or all of the Collateral Documents, termination of this Agreement and the resignation or replacement of the Administrative Agent.

 

14.9    Administrative Agent in Individual Capacity. CIBC and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Company and its Affiliates as though CIBC were not the Administrative Agent hereunder and without notice to or consent of any Lender. Each Lender acknowledges that, pursuant to such activities, CIBC or its Affiliates may receive information regarding the Company or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Company or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. With respect to their Loans (if any), CIBC and its Affiliates shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though CIBC were not the Administrative Agent, and the terms “Lender” and “Lenders” include CIBC and its Affiliates, to the extent applicable, in their individual capacities.

 

14.10   Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders. If the Administrative Agent resigns under this Agreement, the Required Lenders shall, with (so long as no Event of Default exists) the consent of the Company (which shall not be unreasonably withheld or delayed), appoint from among the Lenders a successor agent for the Lenders. If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and (so long as no Event of Default is then continuing) the Company, a successor agent from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent” shall mean such successor agent, and the retiring Administrative Agent’s appointment, powers and duties as Administrative Agent shall be terminated (except for any indemnity payments owed to the retiring or removed Administrative Agent). After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Section 14 and Sections 15.5 and 15.16 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement. If no successor agent has accepted appointment as Administrative Agent by the date which is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and such Person remove such Person as Administrative Agent and, in consultation with Company, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders), then such removal shall nonetheless become effective in accordance with such notice on such date.

 

 

14.11   Collateral Matters. Each Lender authorizes and directs Administrative Agent to enter into the other Loan Documents for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all Lenders. Administrative Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to any Collateral or Loan Documents which may be necessary to perfect and maintain perfected Liens upon the Collateral granted pursuant to this Agreement and the other Loan Documents. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent under any Collateral Document (i) upon termination of the Commitments and payment in full of all Loans and all other obligations of the Company hereunder and the expiration or termination of all Letters of Credit (other than contingent indemnification obligations which are not threatened or pending); (ii) constituting property sold or to be sold or disposed of as part of or in connection with any disposition permitted hereunder (including the release of any guarantor); or (iii) subject to Section 15.1, if approved, authorized or ratified in writing by the Required Lenders. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release, or subordinate its interest in, particular types or items of collateral pursuant to this Section 14.11.

 

14.12   Restriction on Actions by Lenders. Each Lender agrees that it shall not, without the express written consent of Administrative Agent, and shall, upon the written request of Administrative Agent (to the extent it is lawfully entitled to do so), set off against the Obligations, any amounts owing by such Lender to the Company or any deposit accounts of the Company now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Administrative Agent, take or cause to be taken, any action, including the commencement of any legal or equitable proceedings to foreclose any loan or otherwise enforce any security interest in any of the Collateral or to enforce all or any part of this Agreement or the other Loan Documents. All enforcement actions under this Agreement and the other Loan Documents against the Company or any third party with respect to the Obligations or the Collateral may only be taken by Administrative Agent (at the direction of the Required Lenders or as otherwise permitted in this Agreement) or by its agents at the direction of Administrative Agent.

 

 

 

14.13 Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, 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 Company) 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 Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 5, 15.5 and 15.17) allowed in such judicial proceedings; 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, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender 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 Lenders, 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 under Sections 5, 15.5 and 15.17.

 

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

 

14.14 Other Agents; Arrangers and Managers. None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “syndication agent,” “documentation agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger” or “co-arranger”, if any, shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.

 

SECTION 15 GENERAL.

 

15.1 Waiver; Amendments. No delay on the part of the Administrative Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy. Except as set forth in Section 8.9(b), no amendment, modification or waiver of, or consent with respect to, any provision of this Agreement or the other Loan Documents shall in any event be effective unless the same shall be in writing and acknowledged by Lenders having an aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such designation as to any provision of this Agreement, by the Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment, modification, waiver or consent shall (a) extend or increase the Commitment of any Lender without the written consent of such Lender, (b) extend the date scheduled for payment of any principal (excluding mandatory prepayments) of or interest on the Loans or any fees payable hereunder or change Section 6.1.2 or make any other change to this Agreement that would alter the pro rata sharing of payments required thereby, in each case without the written consent of each Lender directly affected thereby, (c) reduce the principal amount of any Loan, the rate of interest thereon or any fees payable hereunder, without the consent of each Lender directly affected thereby; or (d) release any party from its obligations under the Security Agreement or all or any substantial part of the collateral granted under any Collateral Documents, change the definition of Exclusion Event or Required Lenders, any provision of this Section 15.1 or reduce the aggregate Pro Rata Share required to effect an amendment, modification, waiver or consent, without, in each case, the written consent of all Lenders. No provision of Section 14 or other provision of this Agreement affecting the Administrative Agent in its capacity as such shall be amended, modified or waived without the consent of the Administrative Agent. No provision of this Agreement relating to the rights or duties of the Issuing Lenders in their capacities as such shall be amended, modified or waived without the consent of the Issuing Lenders. Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the consent of the Administrative Agent and the Company (A) to correct any mistakes or ambiguities of a technical nature and (B) to add any terms or conditions for the benefit of Lenders.

 

 

15.2 Confirmations. The Company and each holder of a Note agree from time to time, upon reasonable written request received by it from the other, to confirm to the other in writing (with a copy of each such confirmation to the Administrative Agent) the aggregate unpaid principal amount of the Loans then outstanding under such Note.

 

15.3 Notices. Except as otherwise provided in Sections 2.2.2 and 2.2.3, all notices hereunder shall be in writing (including facsimile or other electronic transmission) and shall be sent to the applicable party at its address shown on Annex B or at such other address as such party may, by written notice received by the other parties, have designated as its address for such purpose. Notices sent by facsimile transmission shall be deemed to have been given when sent; notices sent by mail shall be deemed to have been given three Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier service shall be deemed to have been given when received. For purposes of Sections 2.2.2 and 2.2.3, the Administrative Agent shall be entitled to rely on telephonic instructions from any person that the Administrative Agent in good faith believes is an authorized officer or employee of the Company, and the Company shall hold the Administrative Agent and each other Lender harmless from any loss, cost or expense resulting from any such reliance.

 

15.4 Computations. Where the character or amount of any asset or liability or item of income or expense is required to be determined, or any consolidation or other accounting computation is required to be made, for the purpose of this Agreement, such determination or calculation shall, to the extent applicable and except as otherwise specified in this Agreement, be made in accordance with GAAP, consistently applied; provided that if the Company notifies the Administrative Agent that the Company wishes to amend any covenant in Section 10.21 (or any related definition) to eliminate or to take into account the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Company that the Required Lenders wish to amend Section 10.21 (or any related definition) for such purpose), then the Company’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant (or related definition) is amended in a manner satisfactory to the Company and the Required Lenders.

 

15.5 Costs and Expenses. The Company agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent (including Attorney Costs) in connection with the preparation, execution, syndication, delivery and administration (including perfection and protection of any collateral and the costs of Intralinks (or other similar service), if applicable) of this Agreement, the other Loan Documents and all other documents provided for herein or delivered or to be delivered hereunder or in connection herewith (including any amendment, supplement or waiver to any Loan Document), whether or not the transactions contemplated hereby or thereby shall be consummated (unless the failure to so consummate is the decision of the Administrative Agent and the Lenders) and all reasonable and documented out-of-pocket costs and expenses (including Attorney Costs) incurred by the Administrative Agent and each Lender after an Event of Default in connection with the collection of the Obligations or the enforcement of this Agreement the other Loan Documents or any such other documents or during any workout, restructuring or negotiations in respect thereof. All Obligations provided for in this Section 15.5 shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit and termination of this Agreement.

 

 

15.6 Assignments; Participations.

 

15.6.1 Assignments. (a) Any Lender may at any time assign to one or more Persons (any such Person, an “Assignee”) all or any portion of such Lender’s Loans and Commitments, with the prior written consent of the Administrative Agent, the Issuing Lenders and the Company (which consents shall not be unreasonably withheld or delayed); provided, that no consent of the Company shall be required (i) for an assignment to any Person which, directly or indirectly, controls or is controlled by or is under common control with a Lender, (ii) following the occurrence and during the continuance of an Event of Default under and pursuant to Section 13.1.1, Section 13.1.4 or Section 13.1.5, or (iii) following the occurrence and during the continuance of any other Event of Default that has been continuing for at least thirty (30) consecutive days. No such assignment shall be made to a natural Person, any Defaulting Lender or any of its Affiliates or the Company or any of its Affiliates. Except as the Administrative Agent may otherwise agree, any such assignment shall be in a minimum aggregate amount equal to $1,000,000 or, if less, the remaining Commitment and Loans held by the assigning Lender. The Company and the Administrative Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned to an Assignee until the Administrative Agent shall have received and accepted an effective assignment agreement in substantially the form of Exhibit D hereto (an “Assignment Agreement”) executed, delivered and fully completed by the applicable parties thereto and a processing fee of $3,500. No assignment may be made to any Person if at the time of such assignment the Company would be obligated to pay any greater amount under Section 7.6 or 8 to the Assignee than the Company is then obligated to pay to the assigning Lender under such Sections (and if any assignment is made in violation of the foregoing, the Company will not be required to pay such greater amounts). Any attempted assignment not made in accordance with this Section 15.6.1 shall be treated as the sale of a participation under Section 15.6.2.

 

(b)                From and after the date on which the conditions described above have been met, (i) such Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to such Assignee pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder and (ii) the assigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, shall be released from its rights (other than its indemnification rights with respect to facts and circumstances occurring prior to the effective date of such Assignment) and obligations hereunder. Upon the request of the Assignee (and, as applicable, the assigning Lender) pursuant to an effective Assignment Agreement, the Company shall execute and deliver to the Administrative Agent for delivery to the Assignee (and, as applicable, the assigning Lender) a Note in the principal amount of the Assignee’s Pro Rata Share of the Revolving Commitment (and, as applicable, a Note in the principal amount of the Pro Rata Share of the Revolving Commitment retained by the assigning Lender). Each such Note shall be dated the effective date of such assignment. Upon receipt by the assigning Lender of such Note, the assigning Lender shall return to the Company any prior Note held by it.

 

 

(c)                Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

15.6.2 Participations. Any Lender may at any time sell to one or more Persons (other than any direct competitor of the Company) participating interests in its Loans, Commitments or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (a) such Lender’s obligations hereunder shall remain unchanged for all purposes, (b) the Company and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder and (c) all amounts payable by the Company shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. No Participant shall have any direct or indirect voting rights hereunder except with respect to any event described in Section 15.1 expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lender enters into with any Participant. The Company agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement and with respect to any Letter of Credit to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that such right of set-off shall be subject to the obligation of each Participant to share with the Lenders, and the Lenders agree to share with each Participant, as provided in Section 7.5. The Company also agrees that each Participant shall be entitled to the benefits of Section 7.6 or 8 as if it were a Lender (provided that on the date of the participation no Participant shall be entitled to any greater compensation pursuant to Section 7.6 or 8 than would have been paid to the participating Lender on such date if no participation had been sold and that each Participant complies with Section 7.6(d) as if it were an Assignee).

 

15.7 Register.

 

(a)                The Administrative Agent shall maintain a copy of each Assignment Agreement delivered and accepted by it and register (the “Register”) for the recordation of names and addresses of the Lenders and the Commitment of, and principal amounts (and stated interest) of the Loan owing to, each Lender from time to time and whether such Lender is the original Lender or the Assignee. No assignment shall be effective unless and until the Assignment Agreement is accepted and registered in the Register. All records of transfer of a Lender’s interest in the Register shall be conclusive, absent manifest error, as to the ownership of the interests in the Loans. The Administrative Agent shall not incur any liability of any kind with respect to any Lender with respect to the maintenance of the Register.

 

(b)                Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the 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 such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

 

15.8 GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.

 

15.9 Confidentiality.

 

(a)                 The Administrative Agent and each Lender agree to use commercially reasonable efforts (equivalent to the efforts the Administrative Agent or such Lender applies to maintain the confidentiality of its own confidential information) to maintain as confidential all information provided to them by the Company pursuant to the Loan Documents, except that the Administrative Agent and each Lender may disclose such information (i) to Persons employed or engaged by the Administrative Agent or such Lender in evaluating, approving, structuring or administering the Loans and the Commitments; (ii) to any assignee or participant or potential assignee or participant that has agreed to comply with the covenant contained in this Section 15.9 (and any such assignee or participant or potential assignee or participant may disclose such information to Persons employed or engaged by them as described in clause (i) above); (iii) as required or requested by any federal or state regulatory authority or examiner, or any insurance industry association, or as reasonably believed by the Administrative Agent or such Lender to be compelled by any court decree, subpoena or legal or administrative order or process; (iv) as, on the advice of the Administrative Agent’s or such Lender’s counsel, is required by law; (v) in connection with the exercise of any right or remedy under the Loan Documents or in connection with any litigation to which the Administrative Agent or such Lender is a party; (vi) to any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender; provided that the disclosure of any such information to any such agency shall be made subject to the acknowledgment and acceptance by such agency that such information is being disseminated on a confidential basis in accordance with customary market standards for dissemination of such type of information; (vii) to any Affiliate of the Administrative Agent, the Issuing Lenders or any other Lender who may provide Bank Products to the Company; or (viii) that ceases to be confidential through no fault of the Administrative Agent or any Lender. Notwithstanding the foregoing, the Company consents to the publication by the Administrative Agent or any Lender of a tombstone or similar advertising material relating to the financing transactions contemplated by this Agreement, and the Administrative Agent reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, any information with respect to the “tax treatment” or “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby shall not be confidential and the Administrative Agent and the Lenders and other parties hereto may disclose without limitation of any kind any information that is provided to the Administrative Agent or the Lenders with respect to the “tax treatment” or “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4); provided, that to the extent any Loan Document contains information that relates to the “tax treatment” or “tax structure” and contains other information, this Section 15.9 shall only apply to the information regarding the “tax treatment” or “tax structure.” For the avoidance of doubt, the Administrative Agent and each Lender may disclose any data or information regarding the Company that (x) was or became generally available to the public at or prior to such time; or (y) was or became available to the Administrative Agent or a Lender or to the Administrative Agent’s or Lender’s respective attorneys, certified public accountants or agents on a non-confidential basis from the Company or any Investor or any other source at or prior to such time.

 

 

(b)                The Company, the Administrative Agent and the Lenders (i) acknowledge and agree that (x) the identities of the Investors, the amounts of their respective Capital Commitments and details regarding their investments pursuant to its Subscription Agreement (collectively, the “Investor Information”) have been and shall be delivered on a confidential basis; and (y) information with respect to such investments has been and shall be delivered on a confidential basis; (ii) acknowledge and agree that such Investor Information and information with respect to investments are confidential information; and (iii) agree that such Investor Information and information with respect to such investments shall be subject to the provisions of this Section 15.9.

 

(c)                Each of the Administrative Agent and the Lenders represent and warrant that it shall implement and maintain an appropriate written information security program, the terms of which shall meet or exceed the requirements for financial institutions under 17 CFR 248.30.

 

15.10 Severability. Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. All obligations of the Company and rights of the Administrative Agent and the Lenders expressed herein or in any other Loan Document shall be in addition to and not in limitation of those provided by applicable law.

 

15.11 Nature of Remedies. All Obligations of the Company and rights of the Administrative Agent and the Lenders expressed herein or in any other Loan Document shall be in addition to and not in limitation of those provided by applicable law. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

15.12 Entire Agreement. This Agreement, together with the other Loan Documents, embodies the entire agreement and understanding among the parties hereto and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof (except as relates to the fees described in Section 5.3) and any prior arrangements made with respect to the payment by the Company of (or any indemnification for) any fees, costs or expenses payable to or incurred (or to be incurred) by or on behalf of the Administrative Agent or the Lenders.

 

15.13 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement. Receipt of an executed signature page to this Agreement by facsimile or other electronic transmission shall constitute effective delivery thereof. Electronic records of executed Loan Documents maintained by the Lenders shall deemed to be originals.

 

15.14 Successors and Assigns. This Agreement shall be binding upon the Company, the Lenders and the Administrative Agent and their respective successors and permitted assigns, and shall inure to the benefit of the Company, the Lenders and the Administrative Agent and the successors and permitted assigns of the Lenders and the Administrative Agent. No other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any of the other Loan Documents. The Company may not assign or transfer any of its rights or Obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.

 

 

15.15 Captions. Section captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement.

 

15.16 Customer Identification - Patriot Act Notice. Each Lender and CIBC (for itself and not on behalf of any other party) hereby notifies the Company that, pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow such Lender or CIBC, as applicable, to identify the Company in accordance with the Patriot Act.

 

15.17 INDEMNIFICATION BY THE COMPANY. IN CONSIDERATION OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE ADMINISTRATIVE AGENT AND THE LENDERS AND THE AGREEMENT TO EXTEND THE COMMITMENTS PROVIDED HEREUNDER, THE COMPANY HEREBY AGREES TO INDEMNIFY, EXONERATE AND HOLD THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH OF THE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS OF THE ADMINISTRATIVE AGENT AND EACH LENDER (EACH A “LENDER PARTY”) FREE AND HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES, DAMAGES AND EXPENSES, INCLUDING ATTORNEY COSTS (COLLECTIVELY, THE “INDEMNIFIED LIABILITIES”), INCURRED BY THE LENDER PARTIES OR ANY OF THEM AS A RESULT OF, OR ARISING OUT OF, OR RELATING TO (A) ANY TENDER OFFER, MERGER, PURCHASE OF EQUITY INTERESTS, PURCHASE OF ASSETS OR OTHER SIMILAR TRANSACTION FINANCED OR PROPOSED TO BE FINANCED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, WITH THE PROCEEDS OF ANY OF THE LOANS, (B) THE USE, HANDLING, RELEASE, EMISSION, DISCHARGE, TRANSPORTATION, STORAGE, TREATMENT OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE AT ANY PROPERTY OWNED OR LEASED BY THE COMPANY, (C) ANY VIOLATION OF ANY ENVIRONMENTAL LAWS WITH RESPECT TO CONDITIONS AT ANY PROPERTY OWNED OR LEASED BY THE COMPANY OR THE OPERATIONS CONDUCTED THEREON, (D) THE INVESTIGATION, CLEANUP OR REMEDIATION OF OFFSITE LOCATIONS AT WHICH THE COMPANY OR ITS PREDECESSORS ARE ALLEGED TO HAVE DIRECTLY OR INDIRECTLY DISPOSED OF HAZARDOUS SUBSTANCES OR (E) THE EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BY ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED LIABILITIES ARISING ON ACCOUNT OF THE APPLICABLE LENDER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED BY A FINAL, NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION. IF AND TO THE EXTENT THAT THE FOREGOING UNDERTAKING MAY BE UNENFORCEABLE FOR ANY REASON, THE COMPANY HEREBY AGREES TO MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF EACH OF THE INDEMNIFIED LIABILITIES WHICH IS PERMISSIBLE UNDER APPLICABLE LAW. ALL OBLIGATIONS PROVIDED FOR IN THIS SECTION 15.17 SHALL SURVIVE REPAYMENT OF THE LOANS, CANCELLATION OF THE NOTES, EXPIRATION OR TERMINATION OF THE LETTERS OF CREDIT, ANY FORECLOSURE UNDER, OR ANY MODIFICATION, RELEASE OR DISCHARGE OF, ANY OR ALL OF THE COLLATERAL DOCUMENTS AND TERMINATION OF THIS AGREEMENT. THIS SECTION 15.17 SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.

 

 

15.18 Nonliability of Lenders. The relationship between the Company on the one hand and the Lenders and the Administrative Agent on the other hand shall be solely that of borrower and lender. Neither the Administrative Agent nor any Lender has any fiduciary relationship with or duty to the Company arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Company, on the one hand, and the Administrative Agent and the Lenders, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither the Administrative Agent nor any Lender undertakes any responsibility to the Company to review or inform the Company of any matter in connection with any phase of the Company’s business or operations. The Company agrees that neither the Administrative Agent nor any Lender shall have liability to the Company (whether sounding in tort, contract or otherwise) for losses suffered by the Company in connection with, arising out of, or in any way related to the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO LENDER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND THE COMPANY HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). The Company acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Company and the Lenders.

 

15.19 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK COUNTY; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK COUNTY FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

15.20 WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

 

 

15.21 Acknowledgment and Consent to Bail In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA 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 an EEA Resolution Authority to any such liabilities arising under any Loan Document which may be payable to it by any party hereto that is an EEA Financial Institution; and

 

(b)                the effects of any Bail-in Action on any such liability, including, if applicable:

 

(A)            a reduction in full or in part or cancellation of any such liability;

 

(B)            a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA 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 Loan Document; or

 

(C)            variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

 

[signature pages follow]

 

 

The parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first set forth above.

 

	THE COMPANY:
	MORGAN STANLEY DIRECT LENDING FUND
	By:	/s/ Venugopal Rathi
	Name:	Venugopal Rathi
	Title:	Chief Financial Officer

 

[Signature page to Credit Agreement]

 

 

 

	CIBC BANK USA, as Administrative Agent, as Issuing
	Lender and as a Lender
	By:	/s/ Nicholas Jordan
	Name:	Nicholas Jordan
	Title:	Managing Director

 

[Signature page to Credit Agreement]

 

 

ANNEX A

 

LENDERS AND PRO RATA SHARES

 

Lender	Revolving  Commitment Amount	Pro Rata Share
CIBC Bank USA	$100,000,000	100.000%
TOTAL	$100,000,000	100%

 

 

ANNEX B

 

ADDRESSES FOR NOTICES

 

MORGAN STANLEY DIRECT LENDING FUND

 

Venu Rathi, CFO

Morgan Stanley Direct Lending Fund
212 ###-###-####

***@***

 

Orit Mizrachi, COO

Morgan Stanley Direct Lending Fund
212 ###-###-####

***@***

 

CIBC BANK USA, as Administrative Agent, Issuing Lender and a Lender

Notices of Borrowing , Conversion, Continuation and Letter of Credit Issuance

 

70 W. Madison

Chicago, Illinois 60602
Attention: Erica Knight
Telephone: 312 ###-###-####
Email: ***@***

 

All Other Notices

 

120 South LaSalle Street
Chicago, Illinois 60603
Attention: Nick Jordan
Telephone: 312 ###-###-####
Email: ***@***

 

 

ANNEX C

 

BLOCKED ACCOUNT AND COLLATERAL ACCOUNT

 

Blocked Account
Account Bank	Account #
CIBC Bank USA	[*****]
Collateral Account
Account Bank	Account #
State Street Bank and Trust Company	[*****]

 

 

ANNEX D

 

INSTITUTIONAL INVESTOR CATEGORIES

 

1.		Pension Funds
2.		Investment Firms
3.		Direct Investment
4.		Fund of Funds
5.		Insurance Company
6.		Mutual Funds
7.		Private Investment Fund
8.		Real Estate Investment Fund Philanthropy & Agencies
9.		Economic Development Agency
10.		Endowment
11.		University
12.		Foundation
13.		Government Agency
14.		Sovereign Wealth Fund Advisors
15.		Discretionary Advisor
16.		Investment Advisor
17.	Money Management Firm
18.	Wealth Management Firm Other Institutional Partners
19.	Banks and Non-Banks
20.	Corporation

 

 

SCHEDULE 9.3 

 

Company

 

(i)   Name and principal office, chief executive office and principal place of business of Company:

 

Morgan Stanley Direct Lending Fund

 

c/o Morgan Stanley Investment Management

 

1585 Broadway, 39th Floor

 

New York, NY 10036

 

(ii)   State of incorporation of Company: Delaware

 

 

SCHEDULE 9.18

 

Capital Commitments and Capital Contributions

 

[On file with Administrative Agent]

 

 

EXHIBIT A

 

FORM OF
NOTE

_______ , 20__

Chicago, Illinois

 

The undersigned, for value received, promises to pay _________________ (the “Lender”) at the principal office of CIBC Bank USA (the “Administrative Agent”) in Chicago, Illinois the aggregate unpaid amount of all Loans made to the undersigned by the Lender pursuant to the Credit Agreement referred to below (as shown on the schedule attached hereto (and any continuation thereof) or in the records of the Lender), such principal amount to be payable on the dates set forth in the Credit Agreement.

 

The undersigned further promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such Loan is paid in full, payable at the rate(s) and at the time(s) set forth in the Credit Agreement. Payments of both principal and interest are to be made in lawful money of the United States of America.

 

This Note evidences indebtedness incurred under, and is subject to the terms and provisions of, the Credit Agreement, dated as of December 31, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; terms not otherwise defined herein are used herein as defined in the Credit Agreement), among the undersigned, certain financial institutions (including the Lender) and the Administrative Agent, to which Credit Agreement reference is hereby made for a statement of the terms and provisions under which this Note may or must be paid prior to its due date or its due date accelerated.

 

This Note is made under and governed by the laws of the State of New York applicable to contracts made and to be performed entirely within such State.

 

[Signature Page Follows]

 

 

	MORGAN STANLEY DIRECT LENDING FUND
	By:
	Name:
	Title:

 

[Signature Page to Note]

 

 

EXHIBIT B

 

FORM OF COMPLIANCE CERTIFICATE

 

To:	CIBC Bank USA, as Administrative Agent

 

Please refer to the Credit Agreement dated as of December 31, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Morgan Stanley Direct Lending Fund (the “Company”), various financial institutions and CIBC Bank USA, as Administrative Agent. Terms used but not otherwise defined herein are used herein as defined in the Credit Agreement.

 

I.

Reports. Enclosed herewith is a copy of the [annual audited/quarterly] report of the Company as at____________, ____ (the “Computation Date”), which report fairly presents in all material respects the financial condition and results of operations [(subject to the absence of footnotes and to normal year-end adjustments)] of the Company as of the Computation Date and has been prepared in accordance with GAAP consistently applied.

 

II.

Defaulting Investors. To the Company’s knowledge, below is a list of Defaulting Investors and their unfunded Capital Commitments:

 

1.       [______]

 

III.

Beneficial Ownership Certification. The Company certifies and warrants to you that there has been no change in the information provided in the Beneficial Ownership Certification form most recently delivered to the Administrative Agent.

 

The Company further certifies to you that no Event of Default or Unmatured Event of Default has occurred and is continuing.

 

The Company has caused this Certificate to be executed and delivered by its duly authorized

officer on                , ____.

 

	MORGAN STANLEY DIRECT LENDING FUND
	By:
	Name:
	Title:

 

 

 

EXHIBIT C

 

FORM OF BORROWING BASE CERTIFICATE

 

To:          CIBC Bank USA, as Administrative Agent

 

Please refer to the Credit Agreement dated as of December 31, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Morgan Stanley Direct Lending Fund (the “Company”), various financial institutions and CIBC Bank USA, as Administrative Agent. This certificate (this “Certificate”), together with supporting calculations attached hereto, is delivered to you pursuant to the terms of the Credit Agreement. Capitalized terms used but not otherwise defined herein shall have the same meanings herein as in the Credit Agreement.

 

The Company hereby certifies and warrants to the Administrative Agent and the Lenders that at the close of business on ______________  , ____ (the “Calculation Date”), the Borrowing Base was $____________ , computed as set forth on the [schedule]¹ attached hereto.

 

The Company has caused this Certificate to be executed and delivered by its officer thereunto duly authorized on __________ , ______.

 

MORGAN STANLEY DIRECT LENDING FUND

 

	By:
	Name:
	Title:

 

¹ Schedule A shall be used before the one-year anniversary of the Closing Date and Schedule B shall be used on and after the one-year anniversary of the Closing Date.

 

 

SCHEDULE A TO BORROWING BASE CERTIFICATE²

Dated as of [ _______________ ]

 

1.	Aggregate unfunded Capital Commitments of Institutional Investors (excluding any Defaulting Investors)3	$
2.	Item 1 multiplied by 85%	$
3.	Aggregate unfunded Capital Commitments of Individual Investors (excluding any Defaulting Investors and any Threshold Individual Investors)4	$
4.	Item 3 multiplied by 50%	$
5.	Aggregate unfunded Capital Commitments of Threshold Individual Investors (excluding any Defaulting Investors and any Individual Investors)5	$
6.	Item 5 multiplied by 75%	$
7.	Sum of Item 2, Item 4 and Item 6	$
8.	Cash on deposit in Blocked Account	$
9.	Item 7 plus Item 8	$
10.	Revolving Outstandings (includes Stated Amount of Letters of Credit)	$
11.	Lesser of Item 9 and the Revolving Commitment	$
12.	Revolving Loan Availability  (Excess of Item 11 over Item 10)	$
13.	Required Prepayment  (Excess of Item 10 over Item 9)	$

 

² Schedule A to be used before the one-year anniversary of the Closing Date.

 

³ No single Institutional Investor shall comprise more than 25% of the overall Borrowing Base.

 

⁴ No single Individual Investor shall comprise more than 5% of the overall Borrowing Base.

 

⁵ No single Threshold Individual Investor shall comprise more than 5% of the overall Borrowing Base.

 

 

SCHEDULE B TO BORROWING BASE CERTIFICATE⁶

Dated as of [ _______________ ]

 

1.	Aggregate unfunded Capital Commitments of Institutional Investors (excluding any Defaulting Investors)7	$
2.	Item 1 multiplied by 85%	$
3.	Aggregate unfunded Capital Commitments of Individual Investors (excluding any Defaulting Investors and any Threshold Individual Investors)8	$
4.	Item 3 multiplied by 50%	$
5.	Aggregate unfunded Capital Commitments of Threshold Individual Investors (excluding any Defaulting Investors and any Individual Investors)9	$
6.	Item 5 multiplied by 75%	$
7.	Sum of Item 4 and Item 6	$
8.	Sum of Item 2, Item 4 and Item 6	$
9.	Item 8 multiplied by 65%	$
10.	Lesser of Item 7 and Item 9	$
11.	Sum of Item 2 and Item 10	$
12.	Cash on deposit in Blocked Account	$
13.	Item 11 plus Item 12	$
14.	Revolving Outstandings (includes Stated Amount of Letters of Credit)	$
15.	Lesser of Item 13 and the Revolving Commitment	$
16.	Revolving Loan Availability (Excess of Item 15 over Item 14)	$
17.	Required Prepayment (Excess of Item 14 over Item 13)	$

 

⁶ Schedule B to be used on and after the one-year anniversary of the Closing Date.

 

⁷ No single Institutional Investor shall comprise more than 25% of the overall Borrowing Base.

 

⁸ No single Individual Investor shall comprise more than 5% of the overall Borrowing Base.

 

⁹ No single Threshold Individual Investor shall comprise more than 5% of the overall Borrowing Base.

 

 

EXHIBIT D

 

FORM OF ASSIGNMENT AGREEMENT

 

THIS ASSIGNMENT AND ACCEPTANCE (as from time to time amended, modified, restated, amended and restated, supplemented and in effect, this “Assignment and Acceptance”) is entered into as of [               ] by and between [               ] (“Assignor”) and [               ] (“Assignee”). Reference is made to the Credit Agreement dated as of December 31, 2019 (the “Agreement”), among Morgan Stanley Direct Lending Fund (“Company”), the financial institutions party to the Credit Agreement (“Lenders”) and CIBC Bank USA, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Agreement.

 

Assignor and Assignee agree as follows:

 

1.               Assignor hereby sells and assigns to Assignee, and Assignee hereby purchases and assumes from Assignor the interests set forth on Schedule 1 hereto, in and to Assignor’s rights and obligations under the Agreement as of the Effective Date (as defined below). Such purchase and sale is made without recourse, representation or warranty except as expressly set forth herein.

 

2.               Assignor (i) represents that as of the date hereof, that it is the legal and beneficial owner of the interests assigned hereunder free and clear of any adverse claim or security interest, (ii) makes no other representation or warranty and assumes no responsibility with respect to any statement, warranties or representations made in or in connection with the Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Agreement, any Loan Documents or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any other Person or the performance or observance by the Company of its obligations under the Agreement or the Loan Documents or any other instrument or document furnished pursuant thereto.

 

3.               Assignee (i) represents and warrants that it is legally authorized to enter into this Assignment and Acceptance; (ii) confirms that it has received a copy of the Agreement, together with copies of the most recent financial statements delivered pursuant to Sections 10.19 and 10.20 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (iii) agrees that it will, independently and without reliance upon Administrative Agent, Assignor 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 decisions in taking or not taking action under the Agreement; (iv) appoints and authorizes Administrative Agent to take such action as administrative agent on its behalf and to exercise such powers under the Agreement as are delegated to Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (vi) agrees that it will perform in accordance with their terms all obligations which by the terms of the Agreement are required to be performed by it as a Lender; (vii) represents that on the date of this Assignment and Acceptance it is not presently aware of any facts that would cause it to make a claim under the Agreement; and (viii) it shall deliver all tax forms required by Section 7.6 of the Agreement.

 

4.               The effective date for this Assignment and Acceptance shall be as set forth on the Schedule 1 hereto (the “Effective Date”). Following the execution of this Agreement and Acceptance, it will be delivered to Administrative Agent for acceptance and recording by Administrative Agent pursuant to the Agreement.

 

 

5.              Upon such acceptance and recording in the Register, from and after the Effective Date, (i) Assignee shall be a party to the Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Agreement.

 

6.              Upon such acceptance and recording in the Register, from and after the Effective Date, Administrative Agent shall make all payments in respect of the interest assigned hereby (including payments of principal, interest, fees and other amounts) to Assignee. Assignor and Assignee shall make all appropriate adjustments in payments for periods prior to the Effective Date by Administrative Agent or with respect to the making of this assignment directly between themselves.

 

7.              THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first written above.

 

	ASSIGNOR:
	[______________________]

 

	By:
	Title:

 

	ASSIGNEE:
	[______________________]
	By:
	Title:

 

Accepted:
CIBC BANK USA
as Administrative Agent [and Issuing Lender]10

 

By:
Title:

 

MORGAN STANLEY DIRECT LENDING FUND

 

By:
Name:
Title:

 

¹⁰ Insert separate signature block for Issuing Lender if Issuing Lender is not CIBC

 

 

EXHIBIT E

 

FORM OF NOTICE OF BORROWING

 

To:                   CIBC Bank USA, as Administrative Agent

 

Please refer to the Credit Agreement dated as of December 31, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Morgan Stanley Direct Lending Fund (the “Company”), various financial institutions and CIBC Bank USA, as Administrative Agent. Terms used but not otherwise defined herein are used herein as defined in the Credit Agreement.

 

The undersigned hereby gives irrevocable notice, pursuant to Section 2.2.2 of the Credit Agreement, of a request hereby for a borrowing as follows:

 

(i)       The requested borrowing date for the proposed borrowing (which is a Business Day) is                    , ____.

 

(ii)      The aggregate amount of the proposed borrowing is $          .

 

(iii)     The type of Loans comprising the proposed borrowing are [Base Rate] [LIBOR] Loans.

 

(iv)     The duration of the Interest Period for each LIBOR Loan made as part of the proposed borrowing, if applicable, is            (which shall be 1, 2 or 3 months).

 

[(v)     The proposed borrowing shall be deposited in the Blocked Account. The undersigned hereby acknowledges and agrees that such Loan shall be held in the Blocked Account, subject to a collateral designation by the Administrative Agent, and shall only be withdrawn with the permission of the Administrative Agent for the sole purpose of repaying the outstanding Loans.]

 

The undersigned hereby certifies that on the date hereof and on the date of borrowing set forth above, and immediately after giving effect to the borrowing requested hereby: (i) there exists and there shall exist no Unmatured Event of Default or Event of Default under the Credit Agreement; and (ii) each of the representations and warranties contained in the Credit Agreement and the other Loan Documents is true and correct as of the date hereof, except to the extent that such representation or warranty expressly relates to another date and except for changes therein expressly permitted or expressly contemplated by the Credit Agreement.

 

The Company has caused this Notice of Borrowing to be executed and delivered by its officer

thereunto duly authorized on                        , ______.

 

MORGAN STANLEY DIRECT LENDING FUND

 

	By:
	Name:
	Title:

 

 

 

EXHIBIT F

 

FORM OF NOTICE OF CONVERSION/CONTINUATION

 

To:                   CIBC Bank USA, as Administrative Agent

 

Please refer to the Credit Agreement dated as of December 31, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Morgan Stanley Direct Lending Fund (the “Company”), various financial institutions and CIBC Bank USA, as Administrative Agent. Terms used but not otherwise defined herein are used herein as defined in the Credit Agreement.

 

The undersigned hereby gives irrevocable notice, pursuant to Section 2.2.3 of the Credit Agreement, of its request to:

 

(a)       on [ date ] convert $[          ] of the aggregate outstanding principal amount of the [          ] Loan, bearing interest at the [          ] Rate, into a(n) [          ] Loan [and, in the case of a LIBOR Loan, having an Interest Period of [          ]];

 

[(b)      on [ date ] continue $[          ] of the aggregate outstanding principal amount of the [          ] Loan, bearing interest at the LIBOR Rate, as a LIBOR Loan having an Interest Period of [          ]].

 

The undersigned hereby represents and warrants that all of the conditions contained in Section 12.2 of the Credit Agreement have been satisfied on and as of the date hereof, and will continue to be satisfied on and as of the date of the conversion/continuation requested hereby, before and after giving effect thereto.

The Company has caused this Notice of Conversion/Continuation to be executed and delivered by its officer thereunto duly authorized on           ,, ______.

 

MORGAN STANLEY DIRECT LENDING FUND

 

	By:
	Name:
	Title:

 

 

EXHIBIT G

 

FORM OF SUBSCRIPTION AGREEMENT

 

[Attached]

 

 

EXHIBIT H

 

FORM OF CAPITAL COMMITMENT CONFIRMATION

 

Dear [Investor],

 

This letter confirms your Capital Commitment to Morgan Stanley Direct Lending Fund (the “Company”) was accepted by the Company in the amount of $[AMOUNT] effective as of [DATE] pursuant to the terms and conditions set forth in the subscription agreement executed by you.

 

Very truly yours,

 

Morgan Stanley Direct Lending Fund

 

By:

Name:

Title: