Second Amendment to Third Amended and Restated Revolving Credit and Security Agreement, dated as of November 9, 2017, among PennantPark Floating Rate Funding I, LLC, as borrower, PennantPark Investment Advisers, LLC, as collateral manager, the lenders from time to time parties thereto, SunTrust Bank, as administrative agent, and U.S. Bank National Association, as collateral agent, as custodian, as collateral administrator and as backup collateral manager
Exhibit 10.1
SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT, dated as of November 9, 2017 (the Amendment), is made pursuant to that certain Third Amended and Restated Revolving Credit and Security Agreement dated as of May 22, 2015 (as amended, restated, modified or supplemented from time to time, the Agreement), by and among PENNANTPARK FLOATING RATE FUNDING I, LLC, a Delaware limited liability company, as borrower (together with its permitted successors and assigns, the Borrower); PENNANTPARK INVESTMENT ADVISERS, LLC, a Delaware limited liability company, as the collateral manager (together with its permitted successors and assigns, the Collateral Manager); the LENDERS from time to time party thereto; SUNTRUST BANK (SunTrust Bank), as administrative agent for the Secured Parties (in such capacity, together with its successors and assigns, the Administrative Agent), U.S. BANK NATIONAL ASSOCIATION, as collateral agent for the Secured Parties (in such capacity, together with its successors and assigns, the Collateral Agent); U.S. BANK NATIONAL ASSOCIATION, as custodian (in such capacity, together with its successors and assigns, the Custodian); U.S. BANK NATIONAL ASSOCIATION, as collateral administrator (in such capacity, together with its successors and assigns, the Collateral Administrator); and U.S. BANK NATIONAL ASSOCIATION, as backup collateral manager (in such capacity, together with its successors and assigns, the Backup Collateral Manager).
W I T N E S S E T H :
WHEREAS, the Borrower, the Collateral Manager, the Lenders, the Collateral Agent, the Backup Collateral Manager, the Custodian, the Collateral Administrator and the Administrative Agent have previously entered into and are currently party to the Agreement;
WHEREAS, the Borrower has requested that the Lenders extend the Reinvestment Period and make certain other amendments to the Agreement, and the Lenders are willing to do so under the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Defined Terms. Unless otherwise amended by the terms of this Amendment, terms used in this Amendment shall have the meanings assigned in the Agreement.
Section 2. Amendments.
2.1. The defined terms Interest Rate, Lender Fee Letter, Single Covenant Obligation and Reinvestment Period appearing in Section 1.01 of the Agreement shall be amended and restated in its entirety and as so amended and restated shall read as follows:
Interest Rate means, for any Interest Accrual Period and for each Advance outstanding by a Lender for each day during such Interest Accrual Period:
(a) a rate equal to the Alternative Rate plus the Applicable Margin; and
(b) with respect to any Swingline Advance, a rate equal to the Base Rate plus the Applicable Margin minus 1.00% per annum.
Lender Fee Letter means, collectively, (i) that certain Seventh Amended and Restated Lender Fee Letter, dated as of the Second Amendment Effective Date, by and among the Lenders, the Borrower and the Administrative Agent, as the same may be amended or amended and restated from time to time, and (ii) any upfront fee letters entered into by and among any Lender and the Borrower.
Single Covenant Obligation means a loan, debt obligation or Participation Interest (for purposes of this definition, a loan) that:
(i) is not a Covenant Lite Loan,
(ii) does not require the Obligor to comply with at least two of the following financial covenants during each reporting period applicable to such Collateral Loan, whether or not any action by, or event relating to, the Obligor has occurred: maximum leverage, maximum senior leverage, minimum fixed charge coverage, minimum tangible net worth, minimum net worth, minimum debt service coverage, minimum interest coverage, maximum capital expenditures, minimum EBITDA, or other customary financial covenants; and
(iii) either, at the time of acquisition of such loan: (a) is an Eligible First Lien Obligation, or (b)(x) has an Obligor with a trailing twelve month EBITDA of at least the Dollar Equivalent of $40,000,000, (y) has a rating of at least B- from S&P and B3 from Moodys, and (z) is an Eligible Second Lien Obligation.
Reinvestment Period means the period from and including the Closing Date to and including the earlier of (a) November 9, 2020 (or such later date as may be agreed by the Borrower and each of the Lenders and notified in writing to the Agents) or (b) the date of the termination of the Commitments pursuant to Section 6.01.
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2.2. Clause (p) of the defined term Collateral Loan appearing in Section 1.01 of the Agreement is hereby amended and restated in its entirety and as so amended and restated shall read as follows:
(p) has an Obligor with a trailing twelve-month EBITDA of at least the Dollar Equivalent of $7,500,000;
2.3. The following clauses appearing in the defined term Concentration Limit appearing in Section 1.01 of the Agreement are hereby amended and restated in their entirety and as so amended and restated shall read as follows:
(u) not more than 17.5% consists of Collateral Loans that have an Obligor with a trailing twelve-month EBITDA of less than the Dollar Equivalent of $15,000,000;
(y) not more than 10.0% consists of Eligible Covenant Lite Loans;
2.4. Section 1.01 of the Agreement shall be further amended by deleting any and all references to the defined term CP Rate.
2.5. Section 1.01 of the Agreement shall be further amended by inserting the following defined term in alphabetical order, such defined term to read as follows:
Second Amendment Effective Date means November 9, 2017.
2.6. Section 15.19(c) of the Agreement is hereby amended by adding the following sentence at the end thereof:
For the avoidance of doubt, Mountcliff Funding LLC (Mountcliff) shall be the related CP Conduit for Société Générale (SG) with respect to Syndicated Advances denominated in Dollars. Mountcliffs making, funding or maintaining any such Dollar-denominated Syndicated Advance shall satisfy SGs Commitment to make, fund or maintain such Syndicated Advance, and SGs unfunded Commitment shall be reduced by the principal amount of Mountcliffs Syndicated Advances. Notwithstanding the otherwise-applicable restrictions on assignment set forth in Section 15.06(a), without the consent of any Person other than SG and Mountcliff and without delivering an Assignment and Acceptance or any new or additional tax forms, (i) SG may, with the consent of Mountcliff, at any time assign to
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Mountcliff all or any portion of SGs Dollar-denominated Syndicated Advances, together with SGs rights (including, without limitation, the right to receive payments of principal and interest thereon) and obligations with respect thereto, and (ii) Mountcliff may, with the consent of SG or pursuant to any purchase commitment made by SG to Mountcliff, at any time assign to SG all or any portion of Mountcliffs Dollar-denominated Syndicated Advances, together with Mountcliffs rights (including, without limitation, the right to receive payments of principal and interest thereon) and obligations with respect thereto. Promptly following any such assignment by SG to Mountcliff or by Mountcliff to SG, as the case may be, SG shall notify the Administrative Agent of such assignment and principal amount of Syndicated Advances so assigned, and the Administrative Agent shall record such assignment in the Register pursuant to Section 15.06(d).
2.7. Schedule 1 to the Agreement shall be amended and restated in its entirety and as so amended and restated shall read as set forth on Exhibit A attached hereto.
2.8. Schedule 6 to the Agreement shall be amended and restated in its entirety and as so amended and restated shall read as set forth on Exhibit B attached hereto.
Section 3. Assignment. Société Générale (SG) and Mountcliff Funding LLC (Mountcliff) hereby notify the other parties hereto that on the date hereof, SG assigned to Mountcliff, and Mountcliff assumed from SG, 100% of SGs outstanding Dollar-denominated Syndicated Advances with an aggregate principal amount of $12,020,000.01 as contemplated by Section 15.19(c) of the Agreement (as amended hereby). The parties hereto acknowledge and consent to such assignment, and any requirement of prior notice of, or an Assignment and Acceptance for, such assignment are hereby waived solely with respect to such assignment and on a one-time basis. The Administrative Agent shall record such assignment in the Register pursuant to Section 15.06(d) of the Agreement
Section 4. Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction of all of the following conditions precedent:
4.1. The Administrative Agent, the Borrower, the Collateral Manager, and the Lenders shall have executed and delivered this Amendment.
4.2. The Administrative Agent and each Lender shall have received all fees due and payable under the Seventh Amended and Restated Lender Fee Letter dated as of Second Amendment Effective Date, by and among the Administrative Agent, each Lender and the Borrower, and any other fees due and payable to the Administrative Agent or its affiliates.
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4.3. The Administrative Agent shall have received an opinion from Borrowers counsel in form and substance satisfactory to the Administrative Agent.
4.4. Legal matters incident to the execution and delivery of this Amendment shall be satisfactory to the Administrative Agent and its counsel.
Section 5. Representations of the Borrower and Collateral Manager. Each of Borrower and Collateral Manager hereby represent and warrant to the parties hereto that as of the date hereof (a) each of their respective representations and warranties contained in Article IV of the Agreement and any other Facility Documents to which it is a party are true and correct in all material respects as of the date hereof and after giving effect to this Amendment (except to the extent that such representations and warranties relate solely to an earlier date, and then are true and correct as of such earlier date) and (b) no Default or Event of Default has occurred and is continuing under the Agreement.
Section 6. Agreement in Full Force and Effect. Except as specifically amended herein, the Agreement shall continue in full force and effect in accordance with its original terms. Reference to this specific Amendment need not be made in the Agreement or any other instrument or document executed in connection therewith, or in any certificate, letter or communication issued or made pursuant to or with respect to the Agreement, any reference in any of such items to the Agreement being sufficient to refer to the Agreement as amended hereby. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a Loan Document.
Section 7. Execution in Counterparts. This Amendment may be executed in any number of counterparts, and by the different parties on different counterpart signature pages, all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Amendment by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. Delivery of a counterpart hereof by facsimile transmission or by e-mail transmission of an Adobe Portable Document Format File (also known as an PDF file) shall be effective as delivery of a manually executed counterpart hereof.
Section 8 Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Third Amended and Restated Revolving Credit and Security Agreement to be executed and delivered by their duly authorized officers as of the date hereof.
BORROWER AND COLLATERAL MANAGER | ||
PENNANTPARK FLOATING RATE FUNDING I, LLC, as Borrower | ||
By: | PENNANTPARK FLOATING RATE CAPITAL LTD., its Designated Manager |
By: | /s/ Arthur Penn | |
Name: Arthur Penn | ||
Title: CEO | ||
PENNANTPARK INVESTMENT ADVISERS, LLC, as Collateral Manager | ||
By: | /s/ Arthur Penn | |
Name: Arthur Penn | ||
Title: CEO |
[Signature Page to Second Amendment to Third Amended and Restated Revolving Credit and Security Agreement]
ADMINISTRATIVE AGENT AND REQUIRED LENDER | ||
SUNTRUST BANK, as Administrative Agent | ||
By: | /s/ Pawan Churiwal | |
Name: Pawan Churiwal | ||
Title: Vice President | ||
SUNTRUST BANK, as Lender | ||
By: | /s/ Emily Shields | |
Name: Emily Shields | ||
Title: First Vice President |
[Signature Page to Second Amendment to Third Amended and Restated Revolving Credit and Security Agreement]
LENDERS | ||
GOLDMAN SACHS BANK USA, as Lender | ||
By: | /s/ Ryan Durkin | |
Name: Ryan Durkin | ||
Title: Authorized Signatory |
MORGAN STANLEY BANK, N.A., as Lender | ||
By: | /s/ Michael King | |
Name: Michael King | ||
Title: Authorized Signatory |
CAPITAL ONE, N.A., as Lender | ||
By: | /s/ Young Son | |
Name: Young Son | ||
Title: Director |
CITY NATIONAL BANK, as Lender | ||
By: | /s/ Jeffrey Feinberg | |
Name: Jeffrey Feinberg | ||
Title: Senior Vice President |
COMERICA BANK, as Lender | ||
By: | /s/ Timothy ORourke | |
Name: Timothy ORourke | ||
Title: Vice President |
BANK OF NEW YORK MELLON, as Lender | ||
By: | /s/ James L. Behrmann | |
Name: James L. Behrmann | ||
Title: Managing Director |
[Signature Page to Second Amendment to Third Amended and Restated Revolving Credit and Security Agreement]
SOCIÉTÉ GÉNÉRALE, as Lender | ||
By: | /s/ Julien Thinat | |
Name: Julien Thinat | ||
Title: Authorized Signatory |
MOUNTCLIFF FUNDING LLC, as a related CP Conduit | ||
By: | /s/ Josh Borg | |
Name: Josh Borg | ||
Title: Authorized Signatory |
[Signature Page to Second Amendment to Third Amended and Restated Revolving Credit and Security Agreement]
EXHIBIT A
TO
SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
SCHEDULE 1
COMMITMENTS AND PERCENTAGES
LENDER | RELATED CP CONDUIT (DOLLAR SYNDICATED ADVANCES) | COMMITMENT | PERCENTAGE | |||||||||
SunTrust Bank | $ | 200,000,000.00 | 52.63157894 | % | ||||||||
Goldman Sachs Bank USA | $ | 15,000,000.00 | 3.94736842 | % | ||||||||
Morgan Stanley Bank, N.A. | $ | 10,000,000.00 | 2.63157895 | % | ||||||||
Capital One, N.A. | $ | 75,000,000.00 | 19.73684211 | % | ||||||||
City National Bank | $ | 25,000,000.00 | 6 ###-###-#### | % | ||||||||
Comerica Bank | $ | 20,000,000.00 | 5.26315789 | % | ||||||||
Bank of New York Mellon | $ | 10,000,000.00 | 2.63157895 | % | ||||||||
Société Générale | Mountcliff Funding LLC | $ | 25,000,000.00 | 6 ###-###-#### | % | |||||||
FACILITY AMOUNT | $ | 380,000,000.00 | 100.0000000 | % | ||||||||
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EXHIBIT B
TO
SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
SCHEDULE 6
NOTICE INFORMATION
If to the Administrative Agent: | SunTrust Bank 303 Peachtree St., NE, 24th Floor Atlanta, GA 30341 Attention: Michael Peden Telephone No.: 404 ###-###-#### Facsimile No.: 404 ###-###-#### Email: ***@*** | |
SunTrust Bank: | If for Notices of Borrowing or Paydown Notices:
SunTrust Bank 303 Peachtree Street, NE, 24th Floor Attention: ASG Funding Telephone: (404) 658-4568 Facsimile: (404) 495-2171
With a copy to:
SunTrust Bank Email: ***@*** Attention: ASG Portfolio Management |
If for reporting or compliance submissions:
SunTrust Bank Email: ***@*** Phone: (404) 813-5006 Facsimile: (404) 813-0000 Primary Contact: Michael Peden Secondary Contact: Charles Gentles | ||
Goldman Sachs Bank USA | 200 West Street New York, New York 10282 Attention: Shakhi Majumdar E-mail: ***@*** Telephone No: (917) 343-4050 | |
Morgan Stanley Bank, N.A.: | Initial Funding, Closing and Upfront Fee Notices:
1 New York Plaza New York, New York 10004 Attention: John Leidner E-mail: ***@*** Facsimile No.: (718) 233-2132 Telephone No: (917) 260-5332 | |
Borrowing Notices:
1300 Thames Street Thames Street Wharf, 4th Floor Baltimore, Maryland 21231 Attention: Morgan Stanley Loan Servicing Facsimile No.: (718) 233-2140 Telephone No: (443) 627-4355 |
Documentation and Servicing Notices:
1300 Thames Street Thames Street Wharf, 4th Floor Baltimore, Maryland 21231 Attention: Steve Delany E-mail: ***@*** Facsimile No.: (212) 404-9645 Telephone No: (443) 627-4326
With a copy to:
1585 Broadway Avenue, 2nd Floor New York, New York 10036 Attention: Kelly Chin E-mail: ***@*** Facsimile No.: (646) 290-2831 Telephone No: (212) 761-7319 | ||
Legal Notices:
1221 Avenue of the Americas, 34th Floor New York, New York 10020 Attention: Legal and Compliance Division Facsimile No.: (646) 202-9232 | ||
Capital One, N.A.: | Capital One, N.A. 90 Park Avenue, 6th Floor New York, New York 10016 Attention: Matt Tallo Telephone No.: (212) 834.1619 Facsimile No.: (212) 834.1747 Email: ***@*** | |
With a copy to: | Capital One, N.A. 4445 Willard Avenue, 6F Chevy Chase, Maryland 20815 Attention: Bridget Rainero Telephone No.: (301) 280-2592 Facsimile No.:  ###-###-#### Email: ***@*** |
City National Bank: | City National Bank 400 Park Avenue New York, New York Attention: Jeff Feinberg Telephone No.: (917) 322-0634 Email: ***@*** | |
Comerica | Comerica Bank U.S. Banking - East Group Oaktec Office Center 3551 Hamlin Road - MC 2397 Auburn Hills, Michigan 48326 Attention: Timothy ORourke Vice President & Alternate Group Manager Telephone No.: (248) 371-6351 Facsimile No.: (248) 371-6251 Email: ***@*** | |
Bank of New York Mellon | The Bank of New York Mellon 6023 Airport Road Oriskany, New York 13424 Attention: Tina Aney Telephone No.: (315) 765-4261 Email: ***@*** | |
Société Générale | Société Générale 245 Park Avenue New York, New York 10167 Attention: Julien Thinat / Anne-Cecile Gobert Telephone No.: +1 ###-###-####/ +1 ###-###-#### Email: ***@*** | |
Mountcliff Funding LLC | Mountcliff Funding LLC c/o Deutsche Bank Trust Company Americas 60 Wall Street 16th Floor Mail Stop NYC60-1625 New York, New York 10005 Attention: Commercial Paper Mountcliff/20 Gates Facsimile No.: (212) 553-2463 Email: ***@*** |
With a copy to: | 20 Gates Management LLC 30 Irving Place, 2nd Floor New York, New York 10003 Attention: Josh Borg Telephone No.: (212) 295-3784 Facsimile No.: (212) 295-3785 Email: ***@*** and ***@*** | |
If to the Collateral Agent, the Collateral Administrator or the Securities Intermediary: | U.S. Bank National Association Corporate Trust Services CDO Unit One Federal Street, Third Floor Boston, Massachusetts Attention: Jennifer Vlasuk Ref: PennantPark Floating Rate Funding I, LLC Facsimile No.: (866)-350-2904 Telephone No: (617)-603-6461 E-mail: ***@*** | |
If to the Custodian: | U.S. Bank National Association 1719 Range Way Florence, South Carolina 29501 Mail Code: Ex - SC - FLOR Ref: PennantPark Floating Rate Funding I, LLC Attention: Steven Garrett E-mail: ***@*** Facsimile No.: (843)-673-0162 Telephone No: (843)-676-8901 | |
If to the Backup Collateral Manager: | U.S. Bank National Association Corporate Trust Services Backup Servicing/PennantPark Floating Rate Funding EP-MN-WS3D 60 Livingston Avenue St. Paul, MN 55107 Attention: Deborah Jones Franco Facsimile: (651)-495-8090 Telephone No.: (651)-495-3413 E-mail: ***@*** |
If to the Borrower: | PennantPark Floating Rate Funding I, LLC New York, NY 10022 Attention: Arthur Penn Email: ***@***
and:
Attention: Aviv Efrat Phone: (212) 905-1001 Facsimile No.: (212) 905-1075 Email: ***@*** | |
If to the Collateral Manager: | PennantPark Investment Advisers, LLC New York, NY 10022 Attention: Arthur Penn
and:
Attention: Sal Giannetti III Phone: (212) 905-1050 Facsimile No.: (212) 905-1075 Email: ***@*** |