Eaton Vance Senior Income Trust SC TO-I, filed Sep 26, 2023
Eaton Vance Senior Income Trust (EVF)
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 26, 2023
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1) of the
Securities Exchange Act of 1934
Eaton Vance Senior Income Trust
(Name of Subject Company (Issuer))
Eaton Vance Senior Income Trust
(Name of Filing Person (Issuer))
Common Shares of Beneficial Interest, $.01 par value
(Title of Class of Securities)
27826S103
(CUSIP Number of Class of Securities)
Deidre E. Walsh
Eaton Vance Management
Two International Place
Boston, Massachusetts 02110
(617) 482-8260
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Statement)
September 26, 2023
(Date Tender Offer First Published, Sent or Given to Security Holders)
| [_] | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| [_] | third party tender offer subject to Rule 14d-1. |
| [X] | issuer tender offer subject to Rule 13e-4. |
| [_] | going-private transaction subject to Rule 13e-3. |
| [_] | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer. [_]
This Issuer Tender Offer Statement on Schedule TO relates to an offer by Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as a closed-end management investment company (the “Fund”), to purchase for cash up to 10% or 1,753,886 shares of its outstanding common shares of beneficial interest, with par value of $.01 (the “Shares”), upon the terms and subject to the conditions set forth in the Fund’s Offer to Purchase dated September 26, 2023 (the “Offer to Purchase”) and the related Letter of Transmittal (the “Letter of Transmittal” which, together with any amendments or supplements thereto, collectively constitute the “Offer”), copies of which are attached hereto as Exhibits (a)(1)(i) and (a)(1)(ii), respectively. The price to be paid for the Shares is an amount per Share, net to the seller in cash, equal to 98% of the net asset value per Share as of the Expiration Date (as defined in the Offer) or such later date to which the Offer is extended. The information set forth in the Offer is incorporated herein by reference with respect to Items 1 through 9 and Item 11 of this Schedule TO.
| Item 1. | Summary Term Sheet. |
The information set forth under “Summary Term Sheet” in the Offer to Purchase is incorporated herein by reference.
| Item 2. | Subject Company Information. |
(a) The name of the issuer is Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the 1940 Act as a closed-end management investment company. The principal executive offices of the Fund are located at Two International Place, Boston, MA, 02110. The telephone number of the Fund is (617) 482-8260.
(b) The securities being sought in the Offer are the Shares. As of September 19, 2023, there were 17,538,858 Shares issued and outstanding.
(c) The principal market in which the Shares are traded is the New York Stock Exchange (“NYSE”). The Fund began trading on the NYSE on June 29, 2004. For information on the high and low closing market prices of the Shares in such principal market for each quarter for the past two fiscal years (as of the close of ordinary trading on the NYSE on the last day of each of the Fund’s fiscal quarters), see “Section 7. Price Range of Common Shares; Dividends, of the Offer to Purchase,” which is incorporated herein by reference.
| Item 3. | Identity and Background of Filing Person. |
(a) The Fund is the filing person. The information set forth in the Offer to Purchase under “Section 10. Information about the Fund,” is incorporated herein by reference.
| Item 4. | Terms of the Transaction. |
(a)(1) The following sections of the Offer to Purchase contain a description of the material terms of the transaction and are incorporated herein by reference:
Summary Term Sheet
Section 1. Terms of the Offer; Expiration Date
Section 2. Extension of Tender Period, Termination; Amendment
Section 3. Procedures for Tendering Common Shares
Section 4. Withdrawal Rights
Section 5. Acceptance for Payment and Payment
Section 6. Certain Material U.S. Federal Income Tax Consequences
Section 8. Source and Amount of Funds; Effect of The Offer
Section 9. Purpose of the Offer
Section 10. Information Concerning the Fund
Section 11. Interests of the Trustees and Officers; Transactions and Arrangements Concerning the Shares
Section 13. Conditions of the Offer
Section 14. Fees and Expenses
(a)(2) Not applicable.
(b) The information set forth in the Offer to Purchase under “Section 11. Interests of the Trustees and Officers; Transactions and Arrangements Concerning the Shares,” is incorporated herein by reference.
| Item 5. | Past Contracts, Transactions, Negotiations and Agreements. |
(e) The information set forth in the Offer to Purchase under “Section 9. Purpose of the Offer,” and “Section 11. Interests of the Trustees and Officers; Transactions and Arrangements Concerning the Shares,” are incorporated herein by reference.
| Item 6. | Purposes of the Transaction and Plans or Proposals. |
(a) The information set forth in the Offer to Purchase under “Section 9. Purpose of the Offer,” is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase under “Section 9. Purpose of the Offer,” is incorporated herein by reference.
(c) The information set forth in the Offer to Purchase under “Section 9. Purpose of the Offer,” is incorporated herein by reference.
| Item 7. | Source and Amount of Funds or Other Considerations. |
(a) The information set forth in the Offer to Purchase under “Section 8. Source and Amount of Funds; Effect of the Offer,” is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase under “Section 8. Source and Amount of Funds; Effect of the Offer,” is incorporated herein by reference.
(d) The information set forth in the Offer to Purchase under “Section 8. Source and Amount of Funds; Effect of the Offer,” is incorporated herein by reference.
| Item 8. | Interests in Securities of the Subject Company. |
(a) The information set forth in the Offer to Purchase under “Section 11. Interests of the Trustees and Officers; Transactions and Arrangements Concerning the Shares,” is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase under “Section 11. Interests of the Trustees and Officers; Transactions and Arrangements Concerning the Shares,” is incorporated herein by reference.
| Item 9. | Persons/Assets Retained, Employed, Compensated or Used. |
(a) No persons have been directly or indirectly employed, retained, or are to be compensated by or on behalf of the Fund to make solicitations or recommendations in connection with the Offer to Purchase.
Item 10. Financial Statements.
Not applicable.
Item 11. Additional Information.
(a)(1) The information set forth in the Offer to Purchase under “Section 11. Interests of the Trustees and Officers; Transactions and Arrangements Concerning the Shares,” is incorporated herein by reference.
(a)(2) None.
(a)(3) Not applicable.
(a)(4) Not applicable.
(a)(5) None.
(c) Not applicable.
Item 12. Exhibits.
| Exhibit No. | Document |
| (a)(1)(i) | Offer to Purchase dated September 26, 2023. |
| (a)(1)(ii) | Letter of Transmittal. |
| (a)(1)(iii) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
| (a)(1)(iv) | Letter to Clients for us by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
| (a)(1)(v) | Form of Notice of Withdrawal. |
| (a)(2)-(4) | Not applicable. |
| (a)(5)(i) | Press Release issued on September 1, 2023.(1) |
| (a)(5)(ii) | Press Release issued on September 26, 2023. |
| (b)(i) | Form of Credit Agreement between Eaton Vance Senior Income Trust and State Street Bank and Trust Company. |
| (d)(i) | Standstill Agreement dated May 12, 2021.(2) |
| (g) | Not applicable. |
| (h) | Not applicable. |
| 107 | Filing Fees – Calculation of Filing Fee Table. |
_____
(1) Incorporated by reference to the Registrant’s Schedule TO-C, as filed with the Securities and Exchange Commission on September 1, 2023.
(2) Incorporated by reference to the Registrant’s Schedule TO-I, as filed with the Securities and Exchange Commission on June 29, 2021.
Item 13. Information Required by Schedule 13e-3.
Not applicable.
Signature
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| Eaton Vance Senior Income Trust | ||
| By: | /s/ Eric A. Stein | |
| Name: | Eric A. Stein | |
| Title: | President | |
Dated as of September 26, 2023
Exhibit Index
| Exhibit | Description | |
| (a)(1)(i) | Offer to Purchase dated September 26, 2023. | |
| (a)(1)(ii) | Letter of Transmittal. | |
| (a)(1)(iii) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
| (a)(1)(iv) | Letter to Clients for us by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
| (a)(1)(v) | Form of Notice of Withdrawal. | |
| (a)(5)(ii) | Press Release issued on September 26, 2023. | |
| (b)(i) | Form of Credit Agreement between Eaton Vance Senior Income Trust and State Street Bank and Trust Company. | |
| 107 | Filing Fees – Calculation of Filing Fee Tables. | |
Exhibit (a)(1)(i)
OFFER TO PURCHASE
EATON VANCE SENIOR INCOME TRUST
OFFER TO PURCHASE FOR CASH UP TO 10% OR 1,753,886
OF ITS OUTSTANDING COMMON SHARES OF
BENEFICIAL INTEREST AT 98%
OF NET ASSET VALUE PER SHARE
THE OFFER TO PURCHASE WILL EXPIRE ON OCTOBER 25, 2023,
AT 5:00 P.M. EASTERN TIME, UNLESS THE OFFER IS EXTENDED
To the Common Shareholders of Eaton Vance Senior Income Trust:
Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the Investment Company Act of 1940, as amended, as a closed-end management investment company (the “Fund”), is offering to purchase up to 10% or 1,753,886 (the “Offer Amount”) of its outstanding common shares of beneficial interest, with par value of $.01 per share (the “Shares”), for cash at a price equal to 98% of the net asset value (“NAV”) per Share as of the close of regular trading of the New York Stock Exchange (“NYSE”) on the Expiration Date (as defined below). The offer is being made upon the terms and subject to the conditions set forth in the enclosed Offer to Purchase and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”). The Offer is designed to provide holders of the Shares (“Shareholders”) with the opportunity to redeem some or all of their Shares at a price close to NAV should they wish to do so.
In order to participate in the Offer, the materials described in the Offer must be transmitted to and received by Equiniti Trust Company, LLC, the depositary for the Offer, before 5:00 p.m. Eastern Time, October 25, 2023, or such later date to which the Offer is extended. The later of October 25, 2023 and the latest time or date to which the Offer is extended is hereinafter called the “Expiration Date.” Should the Offer be extended beyond October 25, 2023, Shares will be purchased at 98% of the NAV of the Shares as of the close of regular trading of the NYSE on the date to which the Offer was extended.
The Shares are traded on the NYSE under the ticker symbol “EVF.” As of September 19, 2023, the closing price as of the close of regular trading of the NYSE was $5.80 per Share. The Fund normally calculates the NAV of its Shares daily at the close of regular trading of the NYSE. As of the close of regular trading of the NYSE on September 19, 2023, the NAV was $6.22 per Share. During the pendency of the Offer, current NAV quotations can be obtained from EQ Fund Solutions, LLC, the information agent for the Offer (“Information Agent”) at 1-888-542-7446.
The Offer is open to all Shareholders. None of the Fund, its Board of Trustees (the “Board” or the “Trustees”), or Eaton Vance Management (“EVM”), the investment adviser for the Fund, makes any recommendation to any Shareholder as to whether to tender any or all of such Shareholder’s Shares. Shareholders are urged to evaluate carefully all information in the Offer, consult their own investment and tax advisors, and make their own decisions whether to tender Shares and, if so, how many Shares to tender.
No person has been authorized to make any recommendation on behalf of the Fund as to whether Shareholders should tender their Shares pursuant to the Offer. No person has been authorized to give any information or to make any representations in connection with the Offer other than those contained in the Offer to Purchase and in the related Letter of Transmittal. If given or made, such recommendation, information, or representations may not be relied upon as having been authorized by the Board, the officers of the Fund, or EVM. The Fund has been advised that none of its Trustees, officers or its investment adviser intends to tender any Shares pursuant to the Offer.
The Offer is not conditioned upon the tender of any minimum number of Shares. If the number of Shares properly tendered and not withdrawn prior to the Expiration Date is less than or equal to the Offer Amount, the Fund will, upon the terms and subject to the conditions of the Offer, purchase all Shares tendered. If more Shares than the Offer Amount are properly tendered and not withdrawn prior to the Expiration Date, the Fund will, upon the terms and subject to the conditions of the Offer, purchase the Offer Amount on a pro rata basis (disregarding fractional shares).
You should be aware that, if you tender Shares pursuant to the Offer, you will not be entitled to receive, with respect to tendered Shares that are accepted for repurchase by the Fund, any Fund dividend or distribution with a record date occurring on or after the date on which the Fund accepts the Shares for repurchase.
Questions and requests for assistance should be directed to the Information Agent at its address and telephone number set forth on page 5 of the Offer to Purchase. Shareholders may obtain additional copies of the Offer to Purchase, the Letter of Transmittal, the Notice of Withdrawal or any other tender materials from the Information Agent and may also contact their brokers, dealers, banks, trust companies or other nominees for copies of these documents. If you do not wish to tender your Shares, you need not take any action.
If, after carefully evaluating all of the information set forth in the Offer to Purchase, you wish to tender Shares pursuant to the Offer, please follow the instructions contained in the Offer to Purchase and in the Letter of Transmittal or, if your Shares are held of record in the name of a broker, dealer, commercial bank, trust company or other nominee, contact that firm to effect the tender for you. Shareholders are urged to consult their own investment and tax advisors and make their own decisions whether to tender any Shares and, if so, how many Shares to tender.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION AND YOU SHOULD READ THEM CAREFULLY AND IN THEIR ENTIRETY BEFORE YOU MAKE ANY DECISION WITH RESPECT TO THE OFFER.
If you do not wish to tender your Shares, you need not take any action.
September 26, 2023
Table of Contents
| SUMMARY TERM SHEET | 1 |
| THE OFFER | 6 |
| 1. TERMS OF THE OFFER; EXPIRATION DATE | 6 |
| 2. EXTENSION OF TENDER PERIOD, TERMINATION; AMENDMENT | 7 |
| 3. PROCEDURES FOR TENDERING COMMON SHARES | 7 |
| 4. WITHDRAWAL RIGHTS | 9 |
| 5. ACCEPTANCE FOR PAYMENT AND PAYMENT | 10 |
| 6. CERTAIN MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES | 11 |
| 7. PRICE RANGE OF COMMON SHARES; DIVIDENDS | 14 |
| 8. SOURCE AND AMOUNT OF FUNDS; EFFECT OF THE OFFER | 14 |
| 9. PURPOSE OF THE OFFER | 16 |
| 10. INFORMATION CONCERNING THE FUND | 17 |
| 11. INTERESTS OF THE TRUSTEES AND OFFICERS; TRANSACTIONS AND ARRANGEMENTS CONCERNING THE SHARES | 18 |
| 12. LEGAL MATTERS; REGULATORY APPROVALS | 18 |
| 13. CONDITIONS OF THE OFFER | 19 |
| 14. FEES AND EXPENSES | 19 |
| 15. MISCELLANEOUS | 20 |
OFFER TO PURCHASE
EATON VANCE SENIOR INCOME TRUST
OFFER TO PURCHASE FOR CASH UP TO 10% OR 1,753,886
OUTSTANDING COMMON SHARES OF BENEFICIAL INTEREST
SUMMARY TERM SHEET
This Summary Term Sheet highlights certain information in this Offer to Purchase. To understand the Offer (as defined herein) fully and for a more complete description of the terms of the Offer, please read carefully this entire Offer to Purchase and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”). We have included section references to direct you to a more complete description in this Offer to Purchase of the topics in this Summary.
What and how many securities is Eaton Vance Senior Income Trust (the “Fund”) offering to purchase?
The Board of Trustees of the Fund (the “Board” or the “Trustees”) has authorized the Fund to conduct a cash tender offer to purchase up to 10% or 1,753,886 (the “Offer Amount”) of its issued and outstanding common shares of beneficial interest, with par value of $.01 per share (the “Shares”), at the purchase price discussed below.
Are there conditions to the Offer?
The Offer is subject to certain customary conditions described in Section 13 of this Offer to Purchase.
How much and in what form will the Fund pay me for my Shares?
The Fund will pay cash for Shares purchased pursuant to the Offer, less any applicable withholding taxes. The purchase price will equal 98% of the Fund’s net asset value (“NAV”) per Share as of the close of regular trading on the New York Stock Exchange (the “NYSE”) on the date the Offer expires (or if the Offer is extended, on the date to which the Offer is extended), upon the terms and subject to the conditions set forth in the Offer.
The Shares are traded on the NYSE under the ticker symbol “EVF.” As of September 19, 2023, the closing price as of the close of regular trading of the NYSE was $5.80 per Share. The Fund normally calculates the NAV of its Shares daily at the close of regular trading of the NYSE. As of the close of regular trading of the NYSE on September 19, 2023, the NAV was $6.22 per Share. During the pendency of the Offer, current NAV quotations can be obtained from EQ Fund Solutions, LLC, the information agent for the Offer (“Information Agent”), at 1-877-732-3614. For more information, see Section 1, “Terms of the Offer; Expiration Date” and Section 5, “Acceptance for Payment and Payment.”
When does the Offer expire? Can the Fund extend the Offer, and if so, when will the Fund announce the extension?
- The Offer expires on October 25, 2023 at 5:00 p.m. Eastern Time, unless the Fund extends the Offer. The later of October 25, 2023 and the latest time or date to which the Offer is extended is hereinafter called the “Expiration Date.”
- The Fund may extend the Offer period at any time. If it does, the Fund will determine the purchase price as of the close of regular trading on the NYSE as of the new Expiration Date.
- If the Offer period is extended, the Fund will make a public announcement of the extension no later than 9:30 a.m. Eastern Time on the next business day following the previously scheduled Expiration Date.
If you hold your Shares directly, you have until the Expiration Date to decide whether to tender your Shares in the Offer. If you want to tender your Shares, but you cannot comply with the procedure for book-entry transfer by the Expiration Date, you will not be able to tender your Shares. This can occur, for example, if you purchased Shares at, or within one or two days of, the Expiration Date, which would not allow sufficient time for such purchase transaction to settle. There are no guaranteed delivery procedures available under the terms of the Offer as an
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alternative delivery mechanism. You should consult your broker or other Nominee Holder (as defined below) to determine if there is an earlier deadline by which you must inform such Nominee Holder of any decision to tender your Shares and provide to such Nominee Holder any other required materials. For more information see Section 1, “Terms of the Offer; Expiration Date” and Section 2, “Extension of Tender Period; Termination; Amendment.”
Must the Fund accept all Shares tendered?
If the number of Shares properly tendered and not withdrawn prior to the Expiration Date is less than or equal to the Offer Amount, the Fund will, upon the terms and subject to the conditions of the Offer, purchase all Shares tendered. If more Shares than the Offer Amount are properly tendered and not withdrawn prior to the Expiration Date, the Fund will purchase the Offer Amount on a pro rata basis (disregarding fractional shares). Shareholders cannot be assured that all of their tendered Shares will be repurchased. For more information, see Section 1, “Terms of the Offer; Expiration Date.”
Will I have to pay any fees or commissions on Shares I tender?
Shares will be purchased at 98% of the NAV of the Shares as of the close of regular trading of the NYSE on the Expiration Date, which amount is expected to more than offset the costs of the tender, including the processing of tender forms, effecting payment, postage and handling. The Fund will not charge a separate service fee in conjunction with the Offer. If your Shares are held through a financial intermediary, the financial intermediary may charge you a service or other fee for participation in the Offer. Tendering Shareholders will not be obligated to pay transfer taxes on the purchase of Shares by the Fund, except under certain circumstances. For more information see Section 1, “Terms of the Offer; Expiration Date,” Section 5, “Acceptance for Payment and Payment” and Section 14, “Fees and Expenses.”
Does the Fund have the financial resources to pay me for my Shares?
Yes. If the Fund purchased 10% or 1,753,886 Shares at 98% of the September 19, 2023 NAV of $6.22 per Share, the Fund’s total cost, not including fees and expenses incurred in connection with the Offer (which will be paid by Eaton Vance Management (“EVM”), the investment adviser for the Fund), would be approximately $10,698,704.60. The Fund expects to borrow money to finance a portion of the purchase of tendered Shares under a credit agreement (the “Credit Agreement”) that it currently has in place with State Street Bank and Trust Company, as agent (the “Agent”) for the lenders from time to time party thereto (the “Lenders”), and the Lenders. Other sources of funds for the purchase of tendered Shares include cash on hand and the liquidation of portfolio instruments. For more information see Section 8, “Source and Amount of Funds; Effect of the Offer.”
How do I tender my Shares?
If your Shares are registered in the name of a nominee holder, such as a broker, dealer, commercial bank, trust company or other nominee (“Nominee Holder”), you should contact that firm if you wish to tender your Shares.
All other Shareholders wishing to participate in the Offer must, prior to the Expiration Date, complete and execute a Letter of Transmittal, together with any required signature guarantees, and any other documents required by the Letter of Transmittal. You must send these materials to Equiniti Trust Company, LLC (the “Depositary”) at the address provided below:
The Depositary for the Offer:
Equiniti Trust Company, LLC
By hand, mail, express mail, courier or any other expedited service:
Equiniti Trust Company, LLC
Operations Center
Attn: Reorganization Department
6201 15th Avenue
Brooklyn, New York 11219
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By facsimile transmission (for eligible institutions only):
718-234-5001
You must comply with the book-entry delivery procedure set forth in Section 3.C of this Offer to Purchase. The Depositary must receive these materials prior to the date and time the Offer expires. For more information, see Section 3, “Procedures for Tendering Common Shares.”
Must I tender all of my Shares for purchase?
No. You may tender for purchase none, all or some of the Shares you own. For more information, see Section 1, “Terms of the Offer; Expiration Date.”
Until what time can I withdraw tendered Shares?
You may withdraw your tendered Shares at any time prior to the Expiration Date. In addition, after the Offer expires, you may withdraw your tendered Shares if the Fund has not yet accepted tendered Shares for payment by November 24, 2023, the date that is 40 business days from commencement of the Offer.
Withdrawals of tendered Shares may not be rescinded, and any Shares validly withdrawn will thereafter be deemed not validly tendered for purposes of the Offer. However, withdrawn Shares may be retendered by following one of the procedures described in Section 3 of this Offer to Purchase at any time before the Expiration Date. For more information, see Section 4, “Withdrawal Rights.”
How do I withdraw tendered Shares?
If you desire to withdraw tendered Shares, you should either:
- Give proper written notice to the Depositary; or
- If your Shares are held of record in the name of a Nominee Holder, contact that firm to withdraw your tendered Shares.
For more information, see Section 4, “Withdrawal Rights.”
What are the tax consequences of tendering Common Shares?
The receipt of cash for Shares pursuant to the Offer by a U.S. shareholder other than a Shareholder exempt from tax or investing through a tax-advantaged arrangement generally will be a taxable transaction for U.S. federal income tax purposes and may also be a taxable transaction under applicable state, local, foreign and other tax laws. For U.S. federal income tax purposes, the sale of your Shares for cash generally will be treated either as (1) a sale or exchange of the Shares, or (2) a distribution with respect to the Shares that is treated in whole or in part as a taxable dividend. Each Shareholder should consult its tax adviser as to the tax consequences of tendering its Shares in the Offer. For more information, see Section 6, “Certain Material U.S. Federal Income Tax Consequences.”
What is the purpose of the Offer?
On May 12, 2021, the Fund announced that it would conduct cash tender offers in the fourth quarter of each of 2022, 2023 and 2024 for up to 10% of the Fund’s then-outstanding Shares if, from January 1 to August 31 of the relevant year, the Shares trade at an average daily discount to NAV of more than 10%, based upon the Fund’s volume-weighted average market price and NAV on each business day during the period (each, a “Conditional Tender Offer”). If triggered, Shares tendered and accepted in a Conditional Tender Offer would be repurchased at a price per Share equal to 98% of the Fund’s NAV as of the close of regular trading on the NYSE on the date such Conditional Tender Offer expires. The measurement period for 2023 (the “2023 Measurement Period”) ended on August 31, 2023. Based on the Fund’s average trading discounts over the 2023 Measurement Period, it was determined that the conditions precedent to a cash tender in the fourth quarter of 2023 have been met for the Fund.
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Please bear in mind that none of the Fund, the Board, nor EVM, has made any recommendation as to whether you should tender any or all of your Shares in the Offer. No person has been authorized to give any information or to make any representations in connection with the Offer other than as contained herein or in the Letter of Transmittal. If given or made, such recommendation, information, or representations may not be relied upon as having been authorized by the Board, the officers of the Fund, or EVM. Shareholders are urged to consult their own investment and tax advisors and make their own decisions whether to tender any Shares and, if so, how many Shares to tender. For more information, see Section 9, “Purpose of the Offer.”
This Offer to Purchase and the Letter of Transmittal relate solely to the Offer and do not relate to any subsequent Conditional Tender Offer.
What are the most significant conditions of the Offer?
The Fund may not accept Shares tendered for payment under any one of the following circumstances that, in the view of the Board, would make it inadvisable to proceed with the Offer, purchase or payment. The following is not a complete list. For a complete list of the conditions of the Offer, please see Section 13, “Conditions of the Offer.”
- The purchase of Shares in the Offer would result in the delisting of the Shares from the NYSE.
- The Offer could impair compliance with U.S. Securities and Exchange Commission (“SEC”) or Internal Revenue Service (“IRS”) requirements.
- The purchase of Shares in the Offer would result in a failure to comply with the applicable asset coverage requirements applicable to any senior securities of the Fund that are issued and outstanding.
- The Fund would be unable to sell portfolio instruments in connection with or as a result of the Offer in an orderly manner or such sale would have an adverse effect on the NAV of the Fund to the detriment of those Shareholders who do not tender their Shares.
- In the Board’s judgment, there is a material legal action or proceeding instituted or threatened, challenging the Offer or otherwise potentially materially adversely affecting the Fund.
- The general suspension of trading in or limitation on prices for securities on the NYSE, any other exchange on which the Shares are traded or any other exchange on which portfolio instruments held by the Fund are traded.
- Any declaration of a banking moratorium or similar action materially adverse to the Fund by U.S. federal or state authorities or any foreign jurisdiction, or any suspension of payment material to the Fund by banks in the United States, the State of New York, or any other jurisdiction.
- Certain circumstances exist beyond the Fund’s control, including limitations imposed by federal or state authorities on the extension of credit by lenders or where banks have suspended payment.
- Any limitation having a material adverse effect on the Fund that is imposed by U.S. federal or state authorities, or by any governmental authority of any foreign jurisdiction, with respect to the extension of credit by lending institutions or the convertibility of foreign currencies.
- In the Board’s judgment, the Fund or its Shareholders might be adversely affected if Shares were purchased in the Offer.
- The Board determines that the purchase of Shares might constitute a breach of its fiduciary duty.
If I decide not to tender, how will the Offer affect my Shares?
If you do not tender your Shares (or if you own Shares following completion of the Offer), your percentage ownership interest in the Fund will increase after the completion of the Offer and you will be subject to any increased risks associated with the reduction in the Fund’s total assets due to the payment for the tendered Shares. These risks may include greater volatility due to a decreased asset base and proportionately higher expenses, as well as the possibility of receiving additional taxable capital gains on the distributions, and bearing greater brokerage and other transaction expenses, from the sale of portfolio instruments to pay for tendered Shares. The reduced assets of
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the Fund as a result of the Offer may result in less investment flexibility for the Fund, depending on the number of Shares repurchased, and may have an adverse effect on the Fund’s investment performance. For more information, see Section 8, “Source and Amount of Funds; Effect of the Offer” and Section 14, “Fees and Expenses.”
What action need I take if I decide not to tender my Shares?
No action is required if you decide not to tender your shares.
How do I obtain more information about the Offer?
Any questions or requests for assistance or additional copies of this Offer to Purchase, the Letter of Transmittal, or other documents may be directed to the Information Agent at its telephone number below. If you own Shares through a broker or other Nominee Holder, you may call your broker or other Nominee Holder for assistance.
The Information Agent for the Offer is:
EQ Fund Solutions, LLC
48 Wall Street, 22nd Floor
New York, New York 10005
1-877-732-3614
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THE OFFER
1. TERMS OF THE OFFER; EXPIRATION DATE
Upon the terms and subject to the conditions set forth in this Offer to Purchase, the Fund will accept for payment and purchase for cash for up to 10% or 1,753,886 of its issued and outstanding Shares at a price equal to 98% of the NAV per Share as of the close of regular trading of the NYSE on the date the Offer expires, October 25, 2023, or if the Offer is extended, as of the close of regular trading of the NYSE on the date to which the Offer is extended. As of the close of regular trading of the NYSE on September 19, 2023, the Fund’s NAV was $6.22 per Share. During the pendency of the Offer, current NAV quotations can be obtained from EQ Fund Solutions, LLC, the information agent for the Offer (“Information Agent”) at 1-877-732-3614. The Fund reserves the right to extend the Offer at any time. The Offer period may be extended by the Fund issuing a press release or making some other public announcement no later than 9:30 a.m. Eastern Time on the next business day after the Offer otherwise would have expired. During any such extension, all Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the right of any such tendering Shareholder to withdraw his, her or its Shares.
If the Fund makes a material change in the terms of the Offer or the information concerning the Offer, or if it waives a material condition of the Offer, the Fund will extend the Offer to the extent required under the Securities Exchange Act of 1934, as amended, (the “Exchange Act”).
The Offer is being made to all Shareholders of the Fund and is not conditioned upon any minimum number of Shares being tendered. If the number of Shares properly tendered and not withdrawn prior to the Expiration Date is less than or equal to 10% of the Fund’s outstanding Shares, the Fund will, upon the terms and subject to the conditions of the Offer, purchase all Shares so tendered. If more Shares than the Offer Amount are properly tendered and not withdrawn prior to the Expiration Date, the Fund will purchase the Offer Amount on a pro rata basis (disregarding fractional shares). Shares acquired by the Fund pursuant to the Offer will thereafter constitute authorized but unissued Shares of the Fund. Under no circumstances will interest be paid on the Offer price for tendered Shares, regardless of any extension of or amendment to the Offer or any delay in paying for such Shares.
When considering whether to tender Shares, Shareholders should be aware that the payment received pursuant to the Offer will be less than the amount that the Shareholders would be entitled to receive upon a liquidation of the Fund.
Shares will be purchased at 98% of the NAV of the Shares as of the close of regular trading of the NYSE on the Expiration Date, which amount is expected to more than offset the costs of the tender, including the processing of tender forms, effecting payment, postage and handling. The Fund will not charge a separate service fee in conjunction with the Offer. If your Shares are held through a financial intermediary, the financial intermediary may charge you a service or other fee for participation in the Offer. Tendering Shareholders will not be obligated to pay transfer taxes on the purchase of Shares by the Fund, except in the circumstances set forth in Section 5, “Acceptance for Payment and Payment.”
Subject to the terms and conditions of the Offer, the Fund will pay the consideration offered or return the tendered Shares promptly after the termination or withdrawal of the Offer. Specifically, shareholders who choose to participate in the Offer can expect payment for Shares tendered and accepted to be mailed within approximately ten business days after the Expiration Date. If payment of the purchase price is to be made to, or Shares not tendered or not purchased are to be returned in, the name of any person other than the registered holder(s), or if a transfer tax is imposed for any reason other than the sale or transfer of Shares to the Fund pursuant to the Offer, then the amount of any share transfer taxes (whether imposed on the registered holder(s), such other persons or otherwise) will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted.
As of September 19, 2023, there were 17,538,858 Shares outstanding, and there were approximately 64 holders of record of these Shares. As of the date of this Offer to Purchase, the Fund has been advised that none of its Trustees, officers nor investment adviser intend to tender any Shares pursuant to the Offer.
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2. EXTENSION OF TENDER PERIOD, TERMINATION; AMENDMENT
The Fund expressly reserves the right, in its sole discretion, at any time or from time to time, to extend the period of time during which the Offer is open by giving notice of such extension to the Information Agent and making a public announcement thereof. In the event that the Fund so elects to extend the tender period, the NAV for the Shares tendered will be computed as of the close of regular trading of the NYSE on the newly designated Expiration Date. During any such extension, all Shares previously tendered and not purchased or withdrawn will remain subject to the Offer. The Fund also reserves the right, at any time and from time to time up to and including the Expiration Date, to (a) terminate the Offer and not purchase or pay for any Shares or, subject to applicable law, postpone payment for Shares, in each case upon the occurrence of any of the conditions specified in Section 13, “Conditions of the Offer;” and (b) amend the Offer in any respect by making a public announcement thereof. Such public announcement will be issued no later than 9:30 a.m. Eastern Time on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which the Fund may choose to make a public announcement of extension, termination or amendment, except as provided by applicable law (including Rule 13e-4(d)(2), Rule 13e-4(e)(3), and Rule 14e-l(d) under the Exchange Act), the Fund shall have no obligation to publish, advertise or otherwise communicate any such public announcement in any particular manner.
If the Fund materially changes the terms of the Offer or the information concerning the Offer, or if it waives a material condition of the Offer, the Fund will extend the Offer to the extent required by Rules 13e-4(d)(2) and 13e-4(e)(3) under the Exchange Act. These rules require that the minimum period during which the Offer must remain open following material changes in the terms of the Offer or information concerning the Offer (other than a change in price or a change in percentage of securities sought) will depend on the facts and circumstances, including the relative materiality of such terms or information. If (i) the Fund increases or decreases the price to be paid for Shares, or the Fund unilaterally decreases the number of Shares being sought and (ii) the Expiration Date is less than ten business days away, then the Expiration Date will be extended at least ten business days from the date of the notice.
3. PROCEDURES FOR TENDERING COMMON SHARES
A. Proper Tender of Shares.
Shareholders that are registered in the name of a Nominee Holder should contact such firm if they desire to tender their Shares.
For Shares to be properly tendered pursuant to the Offer, the following must occur prior to 5:00 p.m. Eastern Time on the Expiration Date:
| (a) | A properly completed and duly executed Letter of Transmittal, together with any required signature guarantees (or an “Agent’s Message” as described in Section 3.C, “Book Entry Delivery Procedures”), and any other documents required by the Letter of Transmittal must be received by the Depositary at its address set forth on page 2 of this Offer to Purchase; and |
| (b) | The tendering Shareholder must comply with the book-entry delivery procedure set forth in Section 3.C, “Book Entry Delivery Procedures.” |
If you want to tender your Shares, but you cannot comply with the procedure for book-entry transfer by the Expiration Date of the Offer, you will not be able to tender your Shares. This can occur, for example, if you purchased Shares at, or within one or two days of, the Expiration Date, which would not allow sufficient time for such purchase transaction to settle. There are no guaranteed delivery procedures available under the terms of the Offer as an alternative delivery mechanism. If the Letter of Transmittal is signed by trustees, executors, administrators, guardians, agents, attorneys- in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing and must submit proper evidence satisfactory to the Fund of their authority to so act. Letters of Transmittal should be sent to the Depositary; they should not be sent or delivered to the Fund.
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Section 14(e) of the Exchange Act, and Rule 14e-4 promulgated thereunder make it unlawful for any person, acting alone or in concert with others, to tender shares in a partial tender offer for such person’s own account unless at the time of tender, and at the time the shares are accepted for payment, the person tendering has a net long position equal to or greater than the amount tendered in (i) shares, and will deliver or cause to be delivered such shares for the purpose of tendering to the person making the offer within the period specified in the offer, or (ii) an equivalent security and, upon acceptance of his or her tender, will acquire shares by conversion, exchange, or exercise of such equivalent security to the extent required by the terms of the Offer, and will deliver or cause to be delivered the shares so acquired for the purpose of tender to the offeror prior to or on the expiration date. Section 14(e) and Rule 14e-4 provide a similar restriction applicable to the tender or guarantee of a tender on behalf of another person.
The acceptance of Shares by the Fund for payment will constitute a binding agreement between the tendering Shareholder and the Fund upon the terms and subject to the conditions of the Offer, including the tendering Shareholder’s representation that (i) such Shareholder has a net long position in the Shares being tendered within the meaning of Rule 14e-4 promulgated under the Exchange Act and (ii) the tender of such Shares complies with Rule 14e-4.
By submitting the Letter of Transmittal, a tendering Shareholder shall, subject to and effective upon acceptance of payment for the Shares tendered, be deemed in consideration of such acceptance to sell, assign and transfer to, or upon the order of, the Fund all right, title and interest in and to all the Shares that are being tendered (and any and all dividends, distributions, other Shares or other securities or rights declared or issuable in respect of such Shares after the Expiration Date) and irrevocably constitute and appoint the Depositary the true and lawful agent and attorney-in-fact of the tendering Shareholder with respect to such Shares (and any such dividends, distributions, other Shares or securities or rights), with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) to (a) present such Shares (and any such other dividends, distributions, other Shares or securities or rights) for transfer on the books of the Fund, and (b) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares (and any such other dividends, distributions, other Shares or securities or rights), all in accordance with the terms of the Offer. By submitting a Letter of Transmittal, and in accordance with the terms and conditions of the Offer, a tendering Shareholder shall be deemed to represent and warrant that: (a) the tendering Shareholder has full power and authority to tender, sell, assign and transfer the tendered Shares (and any and all dividends, distributions, other Shares or other securities or rights declared or issuable in respect of such Shares after the Expiration Date); (b) when and to the extent the Fund accepts the Shares for purchase, the Fund will acquire good, marketable and unencumbered title thereto, free and clear of all liens, restrictions, charges, proxies, encumbrances or other obligations relating to their sale or transfer, and not subject to any adverse claim; (c) on request, the tendering Shareholder will execute and deliver any additional documents deemed by the Depositary or the Fund to be necessary or desirable to complete the sale, assignment and transfer of the tendered Shares (and any and all dividends, distributions, other Shares or securities or rights declared or issuable in respect of such Shares after the Expiration Date); and (d) the tendering Shareholder has read and agreed to all of the terms of the Offer, including this Offer to Purchase and the Letter of Transmittal.
B. Signature Guarantees and Method of Delivery.
Signatures on the Letter of Transmittal are required to be guaranteed if a check for cash is to be issued in a name other than that of the registered owner of such Shares. In those instances, all signatures on the Letter of Transmittal must be guaranteed by an eligible guarantor acceptable to the Depositary (an “Eligible Guarantor”). An Eligible Guarantor includes a bank, broker, dealer, credit union, savings association or other entity that is a member in good standing of the Securities Transfer Agents Medallion Program, or a bank, broker, dealer, credit union, savings association or other entity that is an “Eligible Guarantor Institution” as such term is defined in Rule 17Ad-15 under the Exchange Act. If Shares are tendered for the account of an institution that qualifies as an Eligible Guarantor, signatures on the Letter of Transmittal are not required to be guaranteed. If the Letter of Transmittal is signed by a person or persons authorized to sign on behalf of the registered owner(s), then the Letter of Transmittal must be accompanied by documents evidencing such authority to sign to the satisfaction of the Fund.
THE METHOD OF DELIVERY OF ANY DOCUMENTS IS AT THE ELECTION AND RISK OF THE PARTY TENDERING SHARES. IF DOCUMENTS ARE SENT BY MAIL, IT IS RECOMMENDED THAT THEY BE SENT BY REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED.
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C. Book-Entry Delivery Procedure.
The Depositary will establish accounts with respect to the Shares at The Depository Trust Company (“DTC”) for purposes of the Offer. Any financial institution that is a participant in any of DTC’s systems may make delivery of tendered Shares by (i) causing DTC to transfer such Shares into the Depositary’s account in accordance with DTC’s procedure for such transfer; and (ii) causing a confirmation of receipt of such delivery to be received by the Depositary. DTC may charge the account of such financial institution for tendering Shares on behalf of Shareholders. Notwithstanding that delivery of Shares may be properly effected in accordance with this book-entry delivery procedure, the Letter of Transmittal, with signature guarantee, if required, or, in lieu of the Letter of Transmittal, an Agent’s Message (as defined below), must be transmitted to and received by the Depositary at the appropriate address set forth on page 2 of this Offer to Purchase before 5:00 p.m. Eastern Time on the Expiration Date.
The term “Agent’s Message” means a message from DTC transmitted to, and received by, the Depositary forming a part of a timely confirmation of a book-entry transfer (a “Book-Entry Confirmation”), which states that DTC has received an express acknowledgment from the DTC participant (“DTC Participant”) tendering the Shares that are the subject of the Book-Entry Confirmation that (i) the DTC Participant has received and agrees to be bound by the terms of the Letter of Transmittal; and (ii) the Fund may enforce such agreement against the DTC Participant.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC’S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY FOR PURPOSES OF THE OFFER.
D. Determination of Validity.
All questions as to the validity, form, eligibility (including time of receipt) and acceptance of tenders will be determined by the Fund, in its sole discretion, whose determination shall be final and binding. The Fund reserves the absolute right to reject any or all tenders determined by it not to be in appropriate form or good order, or the acceptance of or payment for which may, in the opinion of the Fund’s counsel, be unlawful. The Fund also reserves the absolute right to waive any of the conditions of the Offer or any defect in any tender with respect to any particular Shares or any particular Shareholder, and the Fund’s interpretations of the terms and conditions of the Offer will be final and binding. Unless waived, any defects or irregularities in connection with tenders must be cured within such times as the Fund shall determine. Tendered Shares will not be accepted for payment unless any defects or irregularities have been cured or waived within such time. Neither the Fund, EVM, the Depositary nor any other person shall be obligated to give notice of any defects or irregularities in tenders, nor shall any of them incur any liability for failure to give such notice.
E. U.S. Federal Income Tax Withholding.
Payments made to tendering Shareholders pursuant to the Offer may be subject to withholding pursuant to the Internal Revenue Code of 1986, as amended, (the “Code”) and the regulations thereunder. For an additional discussion of such withholding as well as a discussion of certain other U.S. federal income tax consequences to tendering and non-tendering Shareholders, see Section 6, “Certain Material U.S. Federal Income Tax Consequences.”
4. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 4, tenders of Shares made pursuant to the Offer will be irrevocable. You have the right to withdraw tendered Shares at any time prior to 5:00 p.m. Eastern Time on the Expiration Date. If you desire to withdraw Shares tendered on your behalf by a Nominee Holder, you may withdraw by contacting that firm and instructing them to withdraw such Shares. In addition, after the Offer expires, you may withdraw your tendered Shares if the Fund has not yet accepted tendered Shares for payment by November 24, 2023, the date that is 40 business days from commencement of the Offer. To be effective, a written or facsimile transmission notice of withdrawal must be timely received by the Depositary at the address set forth on page 2 of this Offer to Purchase. Any notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn, and the names in which the Shares to be withdrawn are registered. Shareholders should contact the Information Agent for instructions if they wish to submit a notice of withdrawal.
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Any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn Shares (which must be the same name, number, and book-entry transfer facility from which the Shares were tendered), and must comply with the procedures of DTC.
All questions as to the form and validity (including time of receipt) of notices of withdrawal will be determined by the Fund in its sole discretion, whose determination shall be final and binding.
Neither the Fund, EVM, the Depositary nor any other person shall be obligated to give notice of any defects or irregularities in tenders, nor shall any of them incur any liability for failure to give such notice. Shares properly withdrawn shall not thereafter be deemed to be tendered for purposes of the Offer. However, withdrawn Shares may be retendered by following the procedures described in Section 3, “Procedures for Tendering Common Shares,” prior to 5:00 p.m. Eastern Time on the Expiration Date.
The method of delivery of any documents related to a withdrawal is at the risk of the withdrawing Shareholder. Any documents related to a withdrawal will be deemed delivered only when actually received by the Depositary. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
5. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer, the Fund will accept for payment, and will pay cash for, Shares validly tendered on or before the Expiration Date, and not properly withdrawn in accordance with Section 4, “Withdrawal Rights,” promptly after the Expiration Date of the Fund’s Offer. Specifically, shareholders who choose to participate in the Offer can expect payments for Shares tendered and accepted to be mailed within approximately ten business days after the Expiration Date. The Fund expressly reserves the right, in its sole discretion, to delay the acceptance for payment of, or payment for, Shares, in order to comply, in whole or in part, with any applicable law.
Payment for Shares accepted for payment pursuant to the Offer will be made by the Depositary out of funds made available to it by the Fund. The Depositary will act as agent for the Fund for the purpose of effecting payment to the tendering Shareholders. In all cases, payment for Shares tendered and accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary of (i) a Book-Entry Confirmation of the delivery of such Shares, (ii) a properly completed and duly executed Letter of Transmittal or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal, and (iii) any other documents required by the Letter of Transmittal. Accordingly, payment may not be made to all tendering Shareholders at the same time and will depend upon when Book-Entry Confirmations of tendered Shares are received in the Depositary’s account at DTC.
If any tendered Shares are not accepted for payment or are not paid because of an invalid tender or if a Shareholder withdraws tendered Shares, (i) the Shares will be issued in book-entry form and will be electronically held in your account for such unpurchased Shares, as soon as practicable following the expiration, termination or withdrawal of the Offer, (ii) Shares delivered pursuant to the book-entry delivery procedures will be credited to the account from which they were delivered, and (iii) Shares held by the Fund’s transfer agent pursuant to the Fund’s dividend reinvestment and cash purchase plan will be returned to the dividend reinvestment and cash purchase plan account maintained by the transfer agent.
The Fund will pay all transfer taxes, if any, payable on the transfer to it of Shares purchased pursuant to the Offer. If, however, payment of the purchase price is to be made to, or if unpurchased Shares were registered in the name of, any person other than the tendering holder, the amount of any transfer taxes (whether imposed on the registered holder or such other person) payable on account of such transfer will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted. In addition, if certain events occur, the Fund may not be obligated to purchase Shares pursuant to the Offer. See Section 13, “Conditions of the Offer.”
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A tendering U.S. Shareholder or other payee who fails to fully complete and sign an IRS Form W-9 (or substitute form) may be subject to U.S. federal income backup withholding on the gross proceeds paid to such Shareholder or other payee pursuant to the Offer. Non-U.S. Shareholders (as defined in Section 6, “Certain Material U.S. Federal Income Tax Consequences” below) should provide the Depositary with an appropriate and properly completed IRS Form W-8BEN or W-8BEN-E (or substitute form) in order to avoid backup withholding. A copy of IRS Form W-9, W-8BEN or W-8BEN-E will be provided upon request from the Depositary. See Section 3, “Procedures for Tendering Common Shares” and Section 6, “Certain Material U.S. Federal Income Tax Consequences.”
6. CERTAIN MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a general summary of the U.S. federal income tax consequences of the purchase of Shares by the Fund from Shareholders pursuant to the Offer. This summary is based on U.S. federal income tax law as of the date the Offer begins, including the Code, applicable Treasury regulations, IRS rulings, judicial authority and current administrative rulings and practice, all of which are subject to change, possibly with retroactive effect. There can be no assurance that the IRS would not assert, or that a court would not sustain, a position contrary to any of those set forth below, and the Fund has not obtained, nor does the Fund intend to obtain, a ruling from the IRS or an opinion of counsel with respect to any of the consequences described below. Shareholders should also consult their own tax advisors regarding their particular situation and the potential tax consequences to them of a purchase of their Shares by the Fund pursuant to the Offer, including potential state, local and foreign taxation, as well as any applicable transfer taxes.
As used herein, the term “U.S. Shareholder” refers to a Shareholder who is (i) a citizen or resident of the United States, (ii) a corporation (other entity taxable as a corporation) created or organized in or under the laws of the United States or any State thereof or the District of Columbia, (iii) an estate the income of which is subject to U.S. federal income tax regardless of the source of such income, or (iv) a trust if (x) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more “U.S. persons” (as defined in the Code) have the authority to control all substantial decisions of the trust or (y) the trust has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds our Shares, the tax treatment of an owner of such an entity or arrangement generally will depend on the status of the owner and the activities of the entity or arrangement. The term “Non-U.S. Shareholder” refers to a Shareholder who is not a U.S. Shareholder.
Sale or Exchange of Shares. A Shareholder whose Shares are repurchased pursuant to the Offer generally will be treated as having sold the Shares and (other than tax-exempt Shareholders) will recognize gain or loss for U.S. federal income tax purposes, so long as either (a) such Shareholder tenders, and the Fund repurchases, all of such Shareholder’s Shares (i.e., the Shareholder reduces its percentage ownership of the Fund to 0%) or meets certain numerical safe harbors with respect to percentage voting interest and reduction in ownership of the Fund following the completion of the Offer, or (b) the tender otherwise is treated as being “not essentially equivalent to a dividend” under current U.S. federal income tax law. For these purposes, a Shareholder’s ownership of the Fund is determined after applying the ownership attribution rules under Section 318 of the Code. Under Section 318 of the Code, a Shareholder may constructively own Shares actually owned, and in some cases constructively owned, by certain related individuals and certain entities in which the Shareholder or a related individual or entity has an interest. The rules of constructive ownership are complex and must be applied to a particular Shareholder’s situation. Such gain or loss will equal the difference between the price paid by the Fund for the Shares pursuant to the Offer and the Shareholder’s adjusted tax basis in the Shares sold. A Shareholder’s holding period for Shares repurchased pursuant to the Offer will terminate as of the Expiration Date. A tendering Shareholder’s gain or loss will generally be capital gain or loss if the Shares sold are held by the Shareholder at the time of sale as capital assets and will be treated as long-term capital gain if the Shares have been held for more than one year or as short-term if the Shares have been held for one year or less. It is expected that, if a Shareholder is treated as having sold Shares pursuant to the Offer and realizes a gain upon such sale, and if one or more payments are received after the close of the taxable year of the Shareholder in which the Expiration Date occurs, unless the Shareholder elects otherwise, the gain will be accounted for under the installment sale rules for U.S. federal income tax purposes and the Shareholder will generally recognize any such gain as and when proceeds are received, likely allocating tax basis according to the presumed percentage of the total payment received in each installment. To the extent that a portion of any such gain is treated as interest, that portion will be taxed to the Shareholder as ordinary income.
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The maximum U.S. federal income tax rate applicable to short-term capital gains recognized by a non-corporate Shareholder is currently the same as the applicable ordinary income rate. In addition, the Code generally imposes a 3.8% Medicare contribution tax on the net investment income of certain individuals, estates and trusts to the extent their income exceeds certain threshold amounts. For these purposes, “net investment income” generally includes, among other things, (i) distributions paid by the Fund of net investment income and capital gains, and (ii) any net gain from the sale, exchange or other taxable disposition of Shares of the Fund.
In the event that a tendering Shareholder’s ownership of the Fund is not reduced to the extent required under the tests described above, such Shareholder will be deemed to receive a distribution from the Fund under Section 301 of the Code with respect to the Shares held (or deemed held under Section 318 of the Code) by the Shareholder after the tender (a “Section 301 distribution”). Such distribution, which will equal the price paid by the Fund to such Shareholder for the Shares sold, will be taxable as a dividend to the extent of the Fund’s current and accumulated earnings and profits allocable to such distribution. Any such dividend will constitute an ordinary income dividend, an exempt-interest dividend or a capital gain dividend. An ordinary income dividend is generally taxable at ordinary income tax rates, and a dividend properly reported as a capital gain dividend is generally taxable at long-term capital gain rates. The excess will be treated as a return of capital reducing the Shareholder’s tax basis in the Shares held after the Offer (but not below zero), and thereafter as capital gain. In the case of a tendering Shareholder that is a corporation treated as receiving a Section 301 distribution from the Fund in connection with the transaction, special basis adjustments might also apply with respect to any Shares of such Shareholder not repurchased in connection with the Offer.
Provided that no tendering Shareholder is treated as receiving a Section 301 distribution as a result of the Offer, Shareholders whose percentage ownership of the Fund increases as a result of the Offer will not be treated as realizing constructive distributions by virtue of that increase. In the event that any tendering Shareholder is deemed to receive a Section 301 distribution as a result of the Offer, it is possible that Shareholders whose percentage ownership of the Fund increases as a result of the Offer, including Shareholders who do not tender any Shares pursuant to the Offer, will be deemed to receive a constructive distribution under Section 305(c) of the Code in an amount determined by the increase in their percentage ownership of the Fund as a result of the Offer. Such constructive distribution will be treated as a dividend to the extent of current or accumulated earnings and profits allocable to it, and treated as provided in the immediately preceding paragraph. Such dividend treatment will not apply, however, if the tender is treated as an “isolated redemption” within the meaning of the Treasury regulations.
Under the “wash sale” rules under the Code, provided the tender of Shares pursuant to the Offer is treated as a sale or exchange (and not a distribution as described above), loss recognized on Shares sold pursuant to the Offer will ordinarily be disallowed to the extent the Shareholder acquires other Shares of the Fund (whether through automatic reinvestment of dividends or otherwise) or substantially identical stock or securities within 30 days before or after the date the tendered Shares are purchased pursuant to the Offer and, in that event, the basis and holding period of the Shares acquired will be adjusted to reflect the disallowed loss. Any loss realized by a Shareholder on the sale of a Share held by the Shareholder for six months or less will be treated for U.S. federal income tax purposes as a long-term capital loss to the extent of any distributions or deemed distributions of long-term capital gains received by the Shareholder with respect to such Share. A Shareholder’s ability to use capital losses may be limited under the Code.
Non-U.S. Shareholders. Provided the sale of Shares pursuant to the Offer is respected as a sale or exchange for U.S. federal income tax purposes, any gain realized by a Non-U.S. Shareholder upon the tender of Shares pursuant to the Offer will generally not be subject to any U.S. tax withholding and, provided such gain is not effectively connected with a trade or business carried on in the United States by such Non-U.S. Shareholder, will not be subject to any U.S. federal income tax. If, instead, all or a portion of the proceeds received by a tendering Non-U.S. Shareholder is treated for U.S. federal income tax purposes as a Section 301 distribution by the Fund that is treated in whole or in part as a dividend, or if a Non-U.S. Shareholder is otherwise treated as receiving a deemed distribution that is a dividend by reason of the Shareholder’s increase in its percentage ownership of the Fund resulting from other Shareholders’ sale of Shares pursuant to the Offer, absent a statutory exemption, the dividend received or deemed received by the Non-U.S. Shareholder would be subject to a U.S. withholding tax at the rate of 30% (or such lower rate as may be applicable under a tax treaty). If any gain or dividend income realized in connection with the tender of Shares by a Non-U.S. Shareholder is effectively connected with a trade or business carried on in the United States by the Non-U.S. Shareholder, such gain or dividend will be taxed at the graduated rates applicable to U.S. Shareholders. If a Non-U.S. Shareholder is eligible for the benefits of a tax treaty, any gain or dividend income that
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is effectively connected with a U.S. trade or business will generally be subject to U.S. federal income tax on a graduated basis only if it is also attributable to a permanent establishment maintained by such Non-U.S. Shareholder in the United States. In addition, if the Non-U.S. Shareholder is a non-U.S. corporation, it may be subject to a 30% (or such lower rate as may be applicable under a tax treaty) branch profits tax on such effectively connected income.
As the Fund may be unable to determine whether a payment made pursuant to the Offer will properly be characterized as an “exchange” or a “dividend” for U.S. tax purposes at the time of such payment, the Fund may withhold up to 30% of payments made to a Non-U.S. Shareholder or its agents. In that case, such Non-U.S. Shareholder may be eligible to file for a refund of such tax or a portion of such tax if all or a portion of the tender of Shares pursuant to the Offer is treated as a sale or exchange for U.S. federal income tax purposes or if such Non- U.S. Shareholder is entitled to a reduced rate of withholding pursuant to a tax treaty and the Fund withheld at a higher rate.
In order to qualify for any exemptions from withholding described above or for lower withholding tax rates under income tax treaties, or to establish an exemption from backup withholding, a Non-U.S. Shareholder must comply with special certification and filing requirements relating to its non-U.S. status (including, in general, by furnishing an IRS Form W-8BEN, W-8BEN-E or substitute form). Non-U.S. Shareholders are urged to consult their tax advisors regarding the application of U.S. federal income tax rules, including withholding, to their tender of Shares.
Backup Withholding. The Fund generally is required to withhold and remit to the U.S. Treasury a percentage of the taxable distributions and redemption proceeds paid to any individual Shareholder who fails to properly furnish the Fund with a correct taxpayer identification number, who has under-reported dividend or interest income, or who fails to certify to the Fund that he or she is not subject to such withholding.
Shareholders should provide the Fund with a completed IRS Form W-9, W-8BEN, W-8BEN-E, as applicable, or other appropriate form in order to avoid backup withholding on the distributions they receive from the Fund regardless of how they are taxed with respect to their tendered Shares. Backup withholding is not an additional tax and any amount withheld may be credited against a Shareholder’s U.S. federal income tax liability, provided the appropriate information is timely furnished to the IRS.
Other Tax Consequences. The Fund’s purchase of Shares in the Offer may directly result in, or contribute to, a subsequent limitation on the Fund’s ability to use capital loss carryforwards to offset future gains. Therefore, in certain circumstances, Shareholders who remain Shareholders following the completion of the Offer may pay taxes sooner, or pay more taxes, than they would have had the Offer not occurred.
Any sales of securities by the Fund to raise cash to meet repurchase requests could result in increased taxable distributions to Shareholders, including distributions taxable as ordinary income. See “Tax Recognition of Capital Gains” in Section 8, “Source and Amount of Funds; Effect of the Offer” below.
Under Treasury regulations directed at tax shelter activity, if a Shareholder recognizes a loss of $2 million or more in the case of an individual Shareholder or $10 million or more in the case of a corporate Shareholder (or a greater loss over a combination of years), such Shareholder must file a disclosure statement with the IRS on Form 8886. Direct holders of portfolio instruments are in many cases excepted from this reporting requirement, but under current guidance, Shareholders of a regulated investment company (“RIC”) are not excepted. Future guidance may extend the current exception from this reporting requirement to Shareholders of most or all RICs. The fact that a loss is reportable under these regulations does not affect the legal determination of whether the taxpayer’s treatment of the loss is proper. Shareholders should consult their own tax advisors concerning any possible disclosure obligation with respect to their investment in Shares.
FATCA Withholding. Sections 1471-1474 of the Code and the U.S. Treasury and IRS guidance issued thereunder (collectively, “FATCA”) generally require the Fund to obtain information sufficient to identify the status of each of its Shareholders under FATCA or under an applicable intergovernmental agreement (an “IGA”) between the United States and a foreign government. If a Shareholder fails to provide the requested information or otherwise fails to comply with FATCA or an IGA, the Fund may be required to withhold under FATCA with respect to that Shareholder at a rate of 30% on ordinary dividends it pays. The IRS and the U.S. Department of Treasury have issued proposed regulations providing that these withholding rules will not be applicable to the gross proceeds of share redemptions or capital gain dividends the Fund pays. If a payment by the Fund is subject to FATCA withholding, the Fund is required to withhold without reference to any other withholding exemption.
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In addition to the withholding described above under “Non-U.S. Shareholders,” as the Fund may be unable to determine whether a payment made pursuant to the Offer will properly be characterized as an “exchange” or a “dividend” for U.S. tax purposes at the time of such payment, the Fund may withhold under FATCA up to 30% of any payment to a tendering Shareholder that is a foreign financial institution (“FFI”) or non-financial foreign entity (“NFFE”) unless (a) in the case of an FFI, the FFI reports certain direct and indirect ownership of foreign financial accounts held by U.S. persons with the FFI and (b) in the case of an NFFE, the NFFE (i) reports information relating to its “substantial U.S. owners” (within the meaning of FATCA), if any, or (ii) certifies that it has no “substantial U.S. owners.”
Certain Non-U.S. Shareholders may fall into certain exempt, excepted or deemed-compliant categories as established by U.S. Treasury regulations, IGAs, and other guidance regarding FATCA. In order to qualify for any such exception, a Non-U.S. Shareholder generally must provide the Fund with the applicable IRS Form W-8 (W-8BEN-E, W-8ECI, W-8EXP or W-8IMY) properly certifying the Shareholder’s status under FATCA.
Shareholders are urged to consult their own tax advisors regarding the application of U.S. federal income tax withholding, including eligibility for a withholding tax reduction or exemption, and the applicable refund procedure, if any.
7. PRICE RANGE OF COMMON SHARES; DIVIDENDS
The Fund commenced investment operations on October 30, 1998 as an NYSE-listed company, and its Shares are traded on the NYSE under the symbol “EVF.” The following table sets forth for each of the periods indicated the highest and lowest closing market prices per Share on the NYSE:
| Market Price on the NYSE ($) | NAV per Share on Date of Market Price ($) | |||
| Fiscal Quarter Ended | High | Low | High | Low |
| June 30, 2023 | 5.46 | 5.21 | 6.11 | 6.00 |
| March 31, 2023 | 5.76 | 5.25 | 6.15 | 5.98 |
| December 31, 2022 | 5.51 | 5.12 | 6.00 | 5.92 |
| September 30, 2022 | 5.86 | 5.24 | 6.36 | 6.01 |
| June 30, 2022 | 6.44 | 5.37 | 6.80 | 6.21 |
| March 31, 2022 | 7.00 | 6.07 | 6.94 | 6.64 |
| December 31, 2021 | 7.20 | 6.56 | 6.97 | 6.88 |
| September 30, 2021 | 7.12 | 6.63 | 6.99 | 6.94 |
The Fund intends to declare and pay a dividend to Shareholders at least monthly and a distribution to preferred shareholders, if any, approximately monthly or weekly, as applicable. Any capital gains are distributed at least annually. The tender of Shares, unless and until such tendered Shares are accepted for payment, will not affect the record ownership of any such tendered Shares for purposes of entitlement to any dividends or distributions payable by the Fund.
8. SOURCE AND AMOUNT OF FUNDS; EFFECT OF THE OFFER
The actual cost to the Fund of purchasing Shares from the Offer cannot be determined at this time because the number of Shares to be purchased will depend on the number tendered, and the price will be 98% of the NAV of the Shares on the Expiration Date. If the NAV of the Shares on that date were the same as the NAV per share on September 19, 2023, and if 10% of the outstanding Shares are purchased pursuant to the Offer, the estimated cost to the Fund, not including fees and expenses incurred in connection with the Offer, would be approximately $10,698,704.60. Of course, the NAV of the Shares can change every business day. You can obtain current NAV quotations from EQ Fund Solutions, LLC, the Information Agent at 1-877-732-3614.
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The monies to be used by the Fund to purchase Shares pursuant to the Offer will be obtained from any cash on hand, borrowings under its credit facility and/or from proceeds of sales of instruments in the Fund’s investment portfolio.
The Fund expects to borrow money to finance a portion of the purchase of tendered Shares. See “Effect on NAV and Consideration Received by Tendering Shareholders” below for more information.
The Offer may have certain adverse consequences for tendering and non-tendering Shareholders.
Effect on NAV and Consideration Received by Tendering Shareholders. To pay the aggregate purchase price of Shares accepted for payment pursuant to the Offer, the Fund anticipates that funds will be derived from cash on hand, borrowings under its credit facility, and/or from proceeds of sales of instruments in the Fund’s investment portfolio. Effective May 4, 2023, the Fund has entered into a Credit Agreement with the Lenders and the Agent, to borrow up to a limit of $45 million pursuant to a revolving line of credit. Borrowings under the Credit Agreement are secured by the assets of the Fund. Interest is generally charged at the adjusted Secured Overnight Financing Rate for the applicable interest period, plus a margin of 0.85%, and is payable monthly. Under the terms of the Credit Agreement, in effect through May 2, 2024, the Fund pays a facility fee of 0.15% on the committed amount of the facility. The amount of any borrowings under the Credit Agreement would depend upon the amount of Shares tendered and prevailing general, economic and market conditions. The Fund expects that any borrowings under the Credit Agreement would be repaid from funds received from time to time in the ordinary course upon sales of Shares or sale of the Fund’s investments. See “Effect on Leverage” below.
If the Fund is required to sell a substantial amount of portfolio instruments to raise cash to finance the Offer, the over-supply of portfolio instruments for sale could cause market prices of the Fund’s portfolio instruments, and hence the NAV of the Shares, to decline. If such a decline occurs, the Fund cannot predict what its magnitude might be or whether such a decline would be temporary or continue to or beyond the Expiration Date. Because the price per Share to be paid in the Offer will be dependent upon the NAV as determined as of the close of regular trading of the NYSE on the Expiration Date, if such a decline continued to the Expiration Date, the consideration received by tendering Shareholders would be less than it otherwise might be. In addition, a sale of portfolio instruments will cause increased transaction expenses, and the Fund may receive proceeds from the sale of portfolio instruments that are less than the valuations of such securities by the Fund. Accordingly, because of the Offer, the NAV per Share may decline more than it otherwise might, thereby reducing the amount of proceeds received by tendering Shareholders, and also reducing the NAV for non-tendering Shareholders. However, because the Offer price is for 98% of the NAV of the Shares, the purchase of Shares tendered in and of itself would be somewhat accretive to the NAV of Shares outstanding following completion of the Offer.
The Fund may sell portfolio instruments during the pendency of the Offer to raise cash for the purchase of Shares. Thus, it is likely that during the pendency of the Offer, and possibly for a short time thereafter, the Fund will hold a greater than normal percentage of its net assets in cash and cash equivalents. This larger cash position may interfere with the Fund’s ability to meet its investment objective and invest consistent with its investment strategy. The Fund is required by law to pay for tendered Shares it accepts for payment promptly after the Expiration Date of the Offer. Specifically, shareholders who choose to participate in the Offer can expect payments for Shares tendered and accepted to be mailed within approximately ten business days after the Expiration Date. If on or prior to the Expiration Date, the Fund does not have, or believes it is unlikely to have, sufficient cash to pay for all Shares tendered, it may extend the Offer to allow additional time to sell portfolio instruments and raise sufficient cash.
Tax Recognition of Capital Gains. As noted above, the Fund may be required to sell portfolio instruments in order to raise cash to meet purchase requests pursuant to the Offer. The actual tax effect of such sales will depend on the difference between the price at which such portfolio instruments are sold and the tax basis of the Fund in such securities. Any capital gains recognized in any such sales on a net basis, after reduction by any available capital losses, including capital loss carryforwards, will be distributed to Shareholders as capital gain dividends (to the extent of net realized long-term capital gains over net realized short-term capital losses) or ordinary dividends (to the extent of net realized short-term capital gains over net realized long-term capital losses) during or with respect to the
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year of sale, and such distributions will be taxable to Shareholders. Any such sales (1) could require Shareholders holding Shares at the time of a declaration of distributions to pay taxes on greater distributions of capital gains recognized by the Fund than they otherwise would have absent such sales; and (2) could require the Fund to sell additional portfolio instruments in order to raise cash to make such additional distributions, thereby requiring the Fund, in turn, to realize and recognize additional capital gains.
It is impossible to predict the amount of unrealized gains or losses in the Fund’s portfolio instruments at the time that the Fund is required to sell such portfolio instruments, and hence the amount of capital gains or losses that would be realized and recognized. As of September 19, 2023, the Fund had net unrealized losses of $6,658,512, net realized losses for the current fiscal year to date of $602,434, and capital loss carryforwards of $24,196,487 from its most recent tax year-end of June 30, 2023.
Tax Consequences of Repurchases to Shareholders. The Fund’s purchase of Shares tendered pursuant to the Offer will have tax consequences for tendering Shareholders and may also have tax consequences for non-tendering Shareholders. See Section 6, “Certain Material U.S. Federal Income Tax Consequences.”
Effect on Remaining Shareholders, Higher Expense Ratio and Less Investment Flexibility. The purchase of Shares by the Fund pursuant to the Offer will have the effect of increasing the proportionate interest in the Fund of non-tendering Shareholders. All Shareholders remaining after the Offer will be subject to any increased risks associated with the reduction in the Fund’s aggregate assets resulting from payment for the tendered Shares, such as greater volatility due to decreased diversification, potentially greater exposure to leverage, and proportionately higher expenses. The reduced net assets of the Fund as a result of the Offer may result in less investment flexibility for the Fund, depending on the number of Shares repurchased, and may have an adverse effect on the Fund’s investment performance.
Effect on Leverage. The Fund currently uses leverage created by issuing preferred shares as well as by loans acquired with borrowing. In addition, effective May 4, 2023, the Fund has entered into the Credit Agreement to borrow up to a limit of $45 million pursuant to a revolving line of credit. As of August 31, 2023, the Fund’s leverage represented approximately 51% of the Fund’s net assets. Based on the number of Shares purchased in the Offer, the Fund may reduce its outstanding borrowings in order to comply with applicable leverage requirements of the Investment Company Act of 1940, as amended (the “1940 Act”), and the terms of the Fund’s Credit Agreement and to maintain the Fund’s overall leverage targets. The Fund may sell securities held in its investment portfolio to fund this reduction in its outstanding borrowings, which would be subject to similar risks as described above with respect to sales of portfolio instruments to fund the Offer. This de-levering may result in decreased returns to the Fund and increased expenses for remaining shareholders.
Possible Proration. If greater than 10% of the Fund’s Shares are tendered pursuant to the Offer, the Fund would, upon the terms and subject to the conditions of the Offer, purchase Shares tendered on a pro rata basis (disregarding fractional shares). Accordingly, Shareholders cannot be assured that all of their tendered Shares will be repurchased.
THE OFFER MAY HAVE CERTAIN ADVERSE CONSEQUENCES FOR TENDERING AND NON-TENDERING SHAREHOLDERS.
9. PURPOSE OF THE OFFER
On May 12, 2021, the Fund announced that it would conduct cash tender offers in the fourth quarter of each of 2022, 2023 and 2024 for up to 10% of the Fund’s then-outstanding Shares if, from January 1 to August 31 of the relevant year, the Shares trade at an average daily discount to NAV of more than 10%, based upon the Fund’s volume-weighted average market price and NAV on each business day during the period (each, a “Conditional Tender Offer”). If triggered, Shares tendered and accepted in a Conditional Tender Offer would be repurchased at a price per Share equal to 98% of the Fund’s NAV as of the close of regular trading on the NYSE on the date such Conditional Tender Offer expires. The 2023 Measurement Period ended on August 31, 2023. Based on the Fund’s average trading discounts over the 2023 Measurement Period, it was determined that the conditions precedent to a cash tender in the fourth quarter of 2023 have been met for the Fund. Therefore, the Fund determined to execute the purchase required by the terms of the Agreement by conducting the Offer.
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There can be no assurances as to the effect that the Offer will have on the Fund’s market discounts. Common shares of closed-end investment companies often trade at a discount to their NAVs, and the Shares trade at a discount to their NAV, although it is possible that they may trade at NAV or at a premium above NAV. The market price of the Shares is determined by such factors as relative demand for and supply of the Shares in the market, the Fund’s NAV, general market and economic conditions and other factors beyond the control of the Fund. Therefore, the Fund cannot predict whether its Shares will trade at, below or above NAV. Any Shares acquired by the Fund pursuant to the Offer will become authorized but unissued Shares and will be available for issuance by the Fund without further Shareholder action (except as required by applicable law or the rules of the NYSE or other national securities exchanges on which the Shares are listed).
This Offer to Purchase and the Letter of Transmittal relate solely to the Offer and do not relate to any subsequent Conditional Tender Offers.
None of the Fund, its Board, or EVM makes any recommendation to any Shareholder as to whether to tender any or all of such Shareholder’s Shares. Shareholders are urged to evaluate carefully all information in the Offer, consult their own investment and tax advisors, and make their own decisions whether to tender Shares and, if so, how many Shares to tender.
10. INFORMATION CONCERNING THE FUND
The Fund is a closed-end management investment company organized as a Massachusetts business trust. The Fund’s principal executive offices are located at Two International Place, Boston, Massachusetts 02110, telephone: (800) 262-1122. The Shares were first issued to the public on October 30, 1998.
Available Information about the Fund. The Fund is subject to the informational requirements of the 1940 Act, and in accordance therewith files annual reports, proxy statement and other information with the SEC relating to its business, financial condition and other matters. As a closed-end investment company, the Fund differs from an open-end investment company (i.e., a mutual fund) in that it does not redeem its Shares at the election of a Shareholder and does not continuously offer its Shares for sale to the public. The Fund is listed on the NYSE. The Fund’s investment objective is to provide a high level of current income, consistent with the preservation of capital. The Fund seeks to achieve its investment objective by investing primarily in senior, secured floating-rate loans. The Fund may sell portfolio instruments during the pendency of the Offer to raise cash for the purchase of Shares. Thus, it is likely that during the pendency of the Offer, and possibly for a short time thereafter, the Fund will hold a greater than normal percentage of its net assets in cash and cash equivalents. This larger cash position may interfere with the Fund’s ability to meet its investment objective and invest consistent with its investment strategy.
The Fund is required to disclose in proxy statements certain information, as of particular dates, concerning the Trustees and officers, their remuneration, the principal holders of the Fund’s securities and any material interest of such persons in transactions with the Fund. The Fund also has filed an Issuer Tender Offer Statement on Schedule TO with the SEC. Such reports and other information are available on the SEC’s website (http://www.sec.gov).
Agreements Involving the Fund. EVM acts as the investment adviser for the Fund pursuant to an investment advisory agreement.
The Fund also is a party to certain other service agreements. The Fund has an administrative services agreement with EVM that provides that EVM shall provide the Fund with administrative personnel and services. Equiniti Trust Company, LLC is the Fund’s transfer agent, registrar and dividend disbursing agent. Equiniti Trust Company, LLC also serves as the Fund’s Depositary for the Offer. EQ Fund Solutions, LLC serves as the Fund’s Information Agent for the Offer. State Street Bank and Trust Company serves as the custodian for the Fund. The Fund also has entered into a Credit Agreement with the Lenders and the Agent to borrow up to a limit of $45 million pursuant to a revolving line of credit. The amounts paid by the Fund under these service agreements are or will be disclosed in the Fund’s financial statements, which can be found in the Fund’s annual and semi-annual reports.
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11. INTERESTS OF THE TRUSTEES AND OFFICERS; TRANSACTIONS AND ARRANGEMENTS CONCERNING THE SHARES
The business address of the Trustees and officers of the Fund is Two International Place, Boston, Massachusetts 02110.
As of the date of this Offer to Purchase, none of the Trustees, officers and associates (as such term is used in Rule 12b-2 under the Exchange Act) beneficially own any Shares of the Fund, with the exception of Keith Quinton, who owned approximately 7,700 Shares (0.439%) of the Fund.
To the best of the Fund’s knowledge, none of the Trustees, officers, or associates currently intends to tender Shares pursuant to the Offer.
The members of the Board are: Alan C. Bowser, Mark R. Fetting, Cynthia E. Frost, George J. Gorman, Valerie A. Mosley, Anchal Pachnanda, Keith Quinton, Marcus L. Smith, Susan J. Sutherland, Scott E. Wennerholm and Nancy A. Wiser. Anchal Pachnanda is considered an “interested person” of the Fund, as that term is defined in the 1940 Act, by reason of her positions with Morgan Stanley, the parent company of EVM.
The principal executive officer of the Fund is Eric A. Stein. The principal financial officer of the Fund is James F. Kirchner. Correspondence to the Trustees and executive officers of the Fund should be mailed to c/o Eaton Vance Senior Income Trust, Two International Place, Boston, Massachusetts 02110, Attn: Nicholas S. Di Lorenzo, Secretary.
Based on the Fund’s records and upon information provided to the Fund by its Trustees, officers, and associates (as such term is used in Rule 12b-2 under the Exchange Act) neither the Fund nor, to the best of the Fund’s knowledge, any of the Trustees or officers of the Fund, nor any associates (as such term is used in Rule 12b-2 under the Exchange Act) of the Fund, has effected any transactions in the Shares during the sixty day period prior to the date hereof.
On May 12, 2021, EVM entered into an agreement with Saba Capital Management, L.P. (“Saba”) and certain of its affiliates, pursuant to which EVM recommended to the Board, and the Board approved, among other things, the Conditional Tender Offers, and Saba agreed, among other things, (i) to not challenge the certified results of a shareholders’ meeting at which shareholders approved a new investment advisory agreement for the Fund in connection with the acquisition by Morgan Stanley of the parent company of EVM, and (ii) to constraints in connection with initiating certain activist activities during the term of the agreement. A copy of the agreement was included as an exhibit to the Fund’s Schedule TO filed on June 29, 2021. Except as described above, to the best of the Fund’s knowledge, the Fund knows of no other agreement, arrangement or understanding, contingent or otherwise, or whether legally enforceable, between (a) the Fund, any of the Fund’s officers or Trustees, any person controlling the Fund or any officer, trustee or director of any corporation or other person ultimately in control of the Fund and (b) any person with respect to any securities of the Fund (including, but not limited to, any agreement, arrangement or understanding concerning the transfer or the voting of any such securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss, or the giving or withholding of proxies, consents or authorizations).
12. LEGAL MATTERS; REGULATORY APPROVALS
Except as described in this Offer to Purchase, the Fund is not aware of any license or regulatory permit that appears to be material to its business that might be adversely affected by the acquisition of Shares as contemplated by the Offer or of any approval or other action by any government or governmental, administrative or regulatory authority or agency, domestic or foreign, that would be required for the acquisition or ownership of Shares as contemplated by the Offer. Should any such approval or other action be required, the Fund currently contemplates that it will seek approval or such other action. The Fund cannot predict whether it may determine that it is required to delay the acceptance for payment of, or payment for, Shares tendered in response to the Offer pending the outcome of any such matters. There can be no assurance that any approval or other action, if needed, would be obtained or would be obtained without substantial conditions or that the failure to obtain any approval or other action might not result in adverse consequences to the Fund’s business. The Fund’s obligation to accept for payment and pay for Shares under the Offer is subject to various conditions described in Section 13, “Conditions of the Offer.”
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13. CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, which may be changed by the Board, and it is a condition to the Offer that the Fund cannot accept tenders or effect repurchases during any period if:
| (1) | such transactions, if consummated, would (a) result in delisting of the Fund’s Shares from the NYSE (the NYSE Listed Company Manual provides that the NYSE would promptly initiate suspension and delisting procedures with respect to closed-end funds if the total market value of publicly held shares and net assets are each less than $5,000,000 for more than 60 consecutive days or it ceases to maintain its closed-end status; (b) cause the Fund to fail to qualify and to be treated as a regulated investment company under the Code (which would subject the Fund to tax on its taxable income at corporate rates, and cause all distributions from earnings and profits, including any distributions of net tax-exempt income and net long-term capital gains, to be taxable to shareholders as ordinary income); or (c) result in a failure to comply with asset coverage requirements applicable to any senior securities of the Fund that are issued and outstanding; |
| (2) | the amount of Shares tendered would require liquidation of such a substantial portion of the Fund’s portfolio instruments that the Fund would not be able to liquidate portfolio instruments in an orderly manner in light of the existing market conditions and such liquidation would have an adverse effect on the NAV of the Fund to the detriment of non-tendering Shareholders; |
| (3) | there is any (a) in the Board’s’ judgment, material legal action or proceeding instituted or threatened challenging such transactions or otherwise materially adversely affecting the Fund; (b) suspension of or limitation on prices for trading securities generally on the NYSE or other national securities exchange(s), or the National Association of Securities Dealers Automated Quotation System (“NASDAQ”) National Market System; (c) declaration of a banking moratorium by federal or state authorities or any suspension of payment by banks in the United States or New York State; (d) limitation affecting the Fund or the issuers of its portfolio instruments imposed by federal or state authorities on the extension of credit by lending institutions; (e) commencement of war, armed hostilities or other international or national calamity directly or indirectly involving the United States; or (f) in the Board’s judgment, other event or condition which would have a material adverse effect on the Fund or its Shareholders if tendered Shares were purchased; or |
| (4) | the Board determines that effecting any such transaction would constitute a breach of the fiduciary duty it owes to the Fund or its Shareholders. |
The Fund reserves the right, at any time during the pendency of the Offer, to terminate, extend or amend the Offer in any respect. In the event any of the foregoing conditions are modified or waived in whole or in part at any time, the Fund will promptly make a public announcement of such waiver and may, depending on the materiality of the modification or waiver, extend the Offer period as provided in Section 2, “Extension of Tender Period; Termination; Amendment” of this Offer to Purchase.
The foregoing conditions are for the sole benefit of the Fund and may be asserted by the Fund regardless of the circumstances (including any action or inaction by the Fund) giving rise to any of these conditions, and may be waived by the Fund, in whole or in part, at any time and from time to time, on or before the Expiration Date, in its sole discretion. The Fund’s failure at any time to exercise any of the foregoing rights shall not be deemed a waiver of any of these rights, and each of these rights shall be deemed an ongoing right that may be asserted at any time and from time to time. Any determination or judgment by the Fund concerning the events described above will be final and binding on all parties.
14. FEES AND EXPENSES
The Fund has retained EQ Fund Solutions, LLC to act as the Information Agent and Equiniti Trust Company, LLC to act as the Depositary in connection with the Offer. The Information Agent may contact Shareholders by mail, telephone, or email, and may request brokers and other Nominee Holders to forward materials relating to the Offer to beneficial owners. The Information Agent and the Depositary each will receive reasonable and customary compensation for their respective services, will be reimbursed for certain reasonable out-of-pocket expenses and will be indemnified against certain liabilities in connection therewith, including certain liabilities under the federal securities laws. EVM is bearing the fees and expenses of the Offer.
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EVM will not pay any fees or commissions to any broker, any other Nominee Holder, or any other person (other than the Information Agent and the Depositary) for soliciting tenders of Shares pursuant to the Offer. Brokers and other Nominee Holders will, upon request, be reimbursed by EVM for reasonable and necessary costs and expenses incurred by them in forwarding materials to their customers. No such broker or other Nominee Holder has been authorized to act as the agent of the Fund, the Information Agent, or the Depositary for purposes of the Offer.
15. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on behalf of) Shareholders in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the laws of such jurisdiction. The Fund is not aware of any jurisdiction in which the making of the Offer or the tender of the Shares is not in compliance with applicable law. However, the Fund reserves the right to exclude holders in any jurisdiction in which it is asserted that the Offer is not in compliance with any applicable law. So long as the Fund makes a good faith effort to comply with any state law deemed applicable to the Offer, the Fund believes that the exclusions of holders residing in that jurisdiction is permitted under Rule 13e-4(f)(9) under the Exchange Act.
In accordance with Rule 13e-4 under the Exchange Act, the Fund has filed with the SEC a Tender Offer Statement on Schedule TO that contains additional information with respect to the Offer. The Schedule TO, including the exhibits and any amendments thereto, are available on the SEC’s website (http://www.sec.gov).
The Fund has not authorized any person to make any recommendation on its behalf regarding whether Shareholders should tender or refrain from tendering Shares in the Offer. The Fund has not authorized any person to provide any information or make any representation in connection with the Offer, other than those contained in this Offer to Purchase or in the related Letter of Transmittal. Shareholders should not rely upon any recommendation, information or representation that is given or made as having been authorized by the Fund, the Board, the officers of the Fund, its adviser, the Fund’s transfer agent, the Depositary or the Information Agent.
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The Letter of Transmittal and any other required documents should be sent by each Shareholder or such Shareholder’s broker, dealer, bank, trust company or other nominees to the Depositary as set forth below.
The Depositary for the Offer is:
Equiniti Trust Company, LLC
By hand, mail, express mail, courier or any other expedited service:
Equiniti Trust Company, LLC
Operations Center
Attn: Reorganization Department
6201 15th Avenue
Brooklyn, New York 11219
By facsimile transmission (for eligible institutions only):
718-234-5001
Any questions or requests for assistance or additional copies of the Offer to Purchase, the Letter of Transmittal, or other documents may be directed to the Information Agent at its telephone number below. Shareholders may also contact their broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
EQ Fund Solutions, LLC
48 Wall Street, 22nd Floor
New York, New York 10005
1-888-542-7446
Eaton Vance Senior Income Trust
September 26, 2023
Exhibit (a)(1)(ii)
LETTER OF TRANSMITTAL
For Tender of Common Shares of Beneficial Interest
EATON VANCE SENIOR INCOME TRUST
Pursuant to the Offer to Purchase, dated September 26, 2023
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THE FUND’S OFFER WILL EXPIRE ON OCTOBER 25, 2023 AT 5:00 P.M. EASTERN TIME, UNLESS THE OFFER IS EXTENDED. |
Please complete this Letter of Transmittal and Return to the Depositary for the Offer:
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If delivering by hand, mail, express mail, courier or any other expedited service:
Equiniti Trust Company, LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219
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For assistance call (877) 248-6417 or (718) 921-8317
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
Pursuant to the Offer to Purchase dated September 26, 2023 (as it may be amended or supplemented from time to time, the “Offer to Purchase” and, together with this Letter of Transmittal, as it may be amended or supplemented from time to time, the “Offer”), Eaton Vance Senior Income Trust (the “Fund”) has offered to purchase up to 10% of its issued and outstanding common shares of beneficial interest. The Offer expires on October 25, 2023 at 5:00 p.m. Eastern Time, unless the Offer is extended. The undersigned encloses herewith and tenders the following shares of the Fund:
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Name(s) and Address of Registered Holder(s) If there is any error in the name or address shown below, please make the necessary corrections
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DESCRIPTION OF SHARES TENDERED (Please fill in. Attach separate schedule if needed) | ||
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Certificate No(s) |
Number of Shares | ||
| TOTAL SHARES F | |||
Delivery of this Letter of Transmittal to an address other than one of those set forth above will not constitute a valid delivery. YOU MUST DELIVER THIS LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS TO EQUINITI TRUST COMPANY, LLC, THE DEPOSITARY FOR THE OFFER (THE “DEPOSITARY”). Deliveries to the Fund, the Depository Trust Company (“DTC”) or EQ Fund Solutions, LLC, the information agent for the Offer (the “Information Agent”), will not be forwarded to the Depositary and therefore will not constitute valid delivery to the Depositary.
You have received this Letter of Transmittal in connection with the Fund’s Offer to Purchase up to 10% of its issued and outstanding common shares of beneficial interest, at a price per share equal to 98% of the net asset value of the shares as of the close of ordinary trading on the New York Stock Exchange on the date the Offer expires.
You should use this Letter of Transmittal to deliver to the Depositary shares held in book-entry form on the books of the Fund for tender. Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee book-entry transfer must use an Agent’s Message (as defined in Instruction 1 below).
| ☐ | Check here if you are a financial institution that is a participant in the DTC’s system and you are delivering the tendered shares by book-entry transfer to an account maintained by the Depositary at the DTC, and complete the following: |
Name(s) of Tendering Institution(s):
Account Number: Transaction Code Number:
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
| 2 |
| SPECIAL PAYMENT INSTRUCTIONS (See Instructions 1 and 7) |
SPECIAL DELIVERY INSTRUCTIONS (See Instructions 1 and 7) | |||||
| Complete this box ONLY if the check for the aggregate purchase price of shares purchased (less the amount of any applicable U.S. withholding taxes) are to be issued in the name of someone other than the undersigned. | Complete this box ONLY if the check for the aggregate purchase price of shares purchased (less the amount of any applicable U.S. withholding taxes) are to be mailed to someone other than the undersigned or to the undersigned at an address other than that shown below the undersigned’s signature(s). | |||||
| Name |
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Name |
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| (Please Print) | (Please Print) | |||||
| Address |
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Address |
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| (Include Zip Code) | (Include Zip Code) | |||||
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| (Taxpayer Identification or Social Security Number) | (Taxpayer Identification or Social Security Number) | |||||
| (See IRS Form W-9 Included Herewith) | (See IRS Form W-9 Included Herewith) | |||||
| 3 |
Ladies and Gentlemen:
The undersigned hereby tenders to Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the Investment Company Act of 1940, as amended, as a closed-end management investment company (the “Fund”), the above-described common shares of the Fund. All references to shares are to the Fund’s common shares.
The tender of the shares is being made at a price per share equal to 98% of the Fund’s net asset value (“NAV”) per share as of the close of ordinary trading on the New York Stock Exchange on the later of October 25, 2023 and the latest time or date to which the Offer is extended (the Expiration Date”), pursuant to the Fund’s Offer to Purchase up to 10% or 1,753,886 of the Fund’s issued and outstanding common shares in cash, on the terms and subject to the conditions set forth in this Letter of Transmittal and in the Fund’s Offer to Purchase, dated September 26, 2023 (which together, as they may be amended and supplemented from time to time, constitute the “Offer”), the receipt of which is hereby acknowledged.
Subject to and effective upon acceptance for payment of, and payment for, shares tendered with this Letter of Transmittal in accordance with the terms and subject to the conditions of the Offer, the undersigned hereby (1) sells, assigns and transfers to or upon the order of the Fund all right, title and interest in and to all of the shares tendered hereby which are so accepted and paid for; (2) orders the registration of shares tendered by book-entry transfer that are purchased under the Offer to or upon the order of the Fund; and (3) appoints the Depositary as attorney-in-fact of the undersigned with respect to such shares, with the full knowledge that the Depositary also acts as the agent of the Fund, with full power of substitution (such power of attorney being an irrevocable power coupled with an interest), to perform the following functions:
(a) transfer ownership of such shares on the account books maintained by the DTC with all accompanying evidence of transfer and authenticity, to or upon the order of the Fund, upon receipt by the Depositary, as the undersigned’s agent, of a price per share equal to 98% of its NAV per share as of the close of ordinary trading on the New York Stock Exchange on the Expiration Date, with respect to such shares, and (b) receive all benefits and otherwise exercise all rights of beneficial ownership of such shares, subject to the next paragraph, all in accordance with the terms of the Offer.
The undersigned understands that, on the terms and subject to the conditions of the Offer, the Fund will pay a purchase price per share for shares validly tendered and not properly withdrawn in the Offer, equal to 98% of its NAV per share as of the close of ordinary trading on the New York Stock Exchange on the Expiration Date. The Fund will not purchase shares that it does not accept for purchase because of proration provisions.
The undersigned hereby covenants, represents and warrants to the Fund that:
(a) the undersigned (i) understands that it is a violation of Rule 14e-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) for a person, directly or indirectly, to tender shares for that person’s own account unless, at the time of tender (including any extensions thereof), the person so tendering has a “net long position” equal to or greater than the amount tendered in the Fund’s shares or in securities immediately convertible into, or exchangeable or exercisable for, the Fund’s shares, and in the Fund’s shares and will deliver or cause to be delivered the shares in accordance with the terms of the Offer; (ii) has a “net long position” in the shares, within the meaning of Rule 14e-4 under the Exchange Act, at least equal to the number of shares being tendered; and (iii) is tendering the shares in compliance with Rule 14e-4 under the Exchange Act;
(b) the undersigned has full power of authority to tender, sell, assign and transfer the shares tendered hereby;
(c) at the time and to the extent that the Fund accepts the shares for purchase, the Fund will acquire good and marketable title to such shares, free and clear of all security interests, liens, restrictions, claims, charges, encumbrances, conditional sales agreements or other obligations relating to their sale or transfer, and the shares will not be subject to any adverse claims or rights;
(d) the undersigned will, upon request, execute and deliver any additional documents deemed by the Depositary or the Fund to be necessary or desirable to complete the sale, assignment and transfer of the shares tendered hereby and accepted for purchase;
(e) the Fund has advised the undersigned to consult with the undersigned’s own advisors as to the consequences of tendering shares pursuant to the Offer; and
(f) the undersigned has read and agrees to all of the terms of the Offer.
The undersigned understands that tendering shares under any one of the procedures described in Section 3 of the Offer to Purchase and in the Instructions to this Letter of Transmittal will constitute an agreement between the undersigned and the Fund upon the terms and subject to the conditions of the Offer. The undersigned acknowledges that under no circumstances will the Fund pay interest on the purchase price.
| 4 |
The undersigned recognizes that under certain circumstances set forth in the Offer to Purchase, the Fund may terminate or amend the Offer, or may postpone the acceptance for payment of, or the payment for, shares tendered, or may accept for payment fewer than all the shares tendered hereby.
The names and addresses of the registered holders should be printed exactly as they appear on the account registration for the shares.
Unless otherwise indicated under “Special Payment Instructions,” please issue the check for the aggregate purchase price of any shares purchased (less the amount of any applicable U.S. withholding taxes) in the name(s) of the undersigned. Similarly, unless otherwise indicated under “Special Delivery Instructions,” please mail the check for the aggregate purchase price of any shares purchased (less the amount of any applicable U.S. withholding taxes) to the undersigned at the address shown below the undersigned’s signature(s). In the event that both the “Special Payment Instructions” and the “Special Delivery Instructions” are completed, please issue the check for the aggregate purchase price of any shares purchased (less the amount of any applicable U.S. withholding taxes) and mail said check to the person(s) so indicated.
The undersigned recognizes that the Fund has no obligation, under the Special Payment Instructions, to order the registration or transfer of shares tendered by book-entry transfer. All authority conferred or agreed to be conferred in this Letter of Transmittal shall survive the death or incapacity of the undersigned and any obligations or duties of the undersigned under this Letter of Transmittal shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as stated in the Offer to Purchase, this Offer is irrevocable.
THE OFFER IS NOT BEING MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) SHAREHOLDERS IN ANY JURISDICTION IN WHICH THE MAKING OF THE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION.
SHAREHOLDER(S) SIGN HERE
(See Instructions 1 and 5)
(Please Complete and Return the Attached IRS Form W-9 Below)
Must be signed by registered holder(s) exactly as name(s) appear(s) on the account registration. If a signature is by an officer on behalf of a corporation or by an executor, administrator, trustee, guardian, attorney-in-fact, agent or other person acting in a fiduciary or representative capacity, please provide full title and see Instruction 5.
| Signature(s) of Shareholder(s): | ||||
| Dated: | ||||
| Name(s): | ||||
| (Please Print) | ||||
| Capacity (full title): | ||||
| Address: | ||||
| (Please Include Zip Code) | ||||
| 5 |
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Telephone Number, including Area Code: |
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| Taxpayer ID or Social Security No.: |
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| GUARANTEE OF SIGNATURE(S) | ||||
| (If Required, See Instruction 1 and 5) | ||||
| Authorized Signature: | ||||
| Name(s): | ||||
| Name of Firm: | ||||
| Address: | ||||
| Address Line 2: | ||||
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Telephone Number, including Area Code: |
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| Dated: | ||||
| 6 |
INSTRUCTIONS TO LETTER OF TRANSMITTAL
Forming Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. Except as otherwise provided in these Instructions, all signatures on this Letter of Transmittal must be guaranteed by a financial institution that is a participant in the Securities Transfer Agents Medallion Program or a bank, broker, dealer, credit union, savings association or other entity that is an “eligible guarantor institution,” as such term is defined in Rule 17Ad-15 under the Exchange Act (an “Eligible Institution”). Signatures on this Letter of Transmittal need not be guaranteed if either: (a) this Letter of Transmittal is signed by the registered holder(s) of the shares (which term, for purposes of this Letter of Transmittal, shall include any participant in DTC whose name appears on a security position listing as the owner of shares) tendered herewith and such holder(s) have not completed either the box entitled “Special Payment Instructions” or “Special Delivery Instructions” in this Letter of Transmittal; or (b) such shares are tendered for the account of an Eligible Institution. See Instruction 5.
2. Delivery of Letter of Transmittal. This Letter of Transmittal is to be used only by registered shareholders of book-entry shares. If shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee book-entry transfer, an Agent’s Message must be used. The term “Agent’s Message” means a message transmitted by the DTC to, and received by, the Depositary, which states that the DTC has received an express acknowledgment from the DTC participant tendering the shares that the participant has received and agrees to be bound by the terms of the Letter of Transmittal and Offer to Purchase and that the Fund may enforce such agreement against the participant.
Confirmation of a book-entry transfer in the Depositary’s account at DTC of shares tendered by book-entry transfer with a properly completed and duly executed Letter of Transmittal, and any other documents required by this Letter of Transmittal, should be mailed or delivered to the Depositary at the appropriate address set forth herein and must be received by the Depositary prior to the Expiration Date, as defined in the Offer to Purchase. The method of delivery of all documents, including the Letter of Transmittal is at the option and risk of the tendering shareholder. If you choose to deliver the documents by mail, we recommend that you use registered mail with return receipt requested, properly insured. In all cases, please allow sufficient time to assure delivery.
The Fund will not accept any alternative, conditional or contingent tenders, nor will it purchase any fractional shares. By executing this Letter of Transmittal, you waive any right to receive any notice of the acceptance for payment of your tendered shares.
3. Inadequate Space. If the space provided in the box captioned “Description of Shares Tendered” is inadequate, then you should list the number of shares tendered on a separate signed schedule attached to this Letter of Transmittal.
4. Order of Purchase. Shareholders may specify the order in which their common shares are to be purchased pursuant to the terms of the Offer. The order of purchase may have an effect on the U.S. federal income tax treatment of any gain or loss on the shares that the Fund purchases.
5. Signatures on Letter of Transmittal.
(a) Exact Signatures. If this Letter of Transmittal is signed by the registered holder(s) of the common shares tendered hereby, the signature(s) must correspond exactly with the name(s) on the account registration without any change whatsoever.
(b) Joint Holders. If the common shares tendered hereby are registered in the names of two or more persons, ALL such persons must sign this Letter of Transmittal.
(c) Different Names on Account Registrations. If any tendered shares are registered in different names on your account registrations, you must complete, sign and submit as many separate letters of transmittal as there are different account registrations.
(d) Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the shares tendered hereby, no endorsements of certificate(s) representing such shares are required unless payment is to be made to a person other than the registered holder(s).
If this Letter of Transmittal is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or any other person acting in a fiduciary or representative capacity, such person should so indicate when signing and must submit to the Depositary evidence satisfactory to the Fund that such person has authority so to act.
6. Stock Transfer Taxes. Except as provided in this Instruction 6, no stock transfer tax stamps or funds to cover such stamps need to accompany this Letter of Transmittal. The Fund will pay or cause to be paid any stock transfer taxes payable on the transfer to it of shares purchased under the Offer. If, however payment of the purchase price is to be made to any person other than the registered holder(s) then the Depositary will deduct from the purchase price the amount of any stock transfer taxes (whether imposed on the registered holder(s), such other person(s) or otherwise) payable on account of the transfer of cash or stock thereby made to such person, unless satisfactory evidence of the payment of such taxes or an exemption from them is submitted with this Letter of Transmittal.
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7. Special Payment and Delivery Instructions. If any of the following conditions holds:
(a) check(s) for any shares purchased pursuant to the Offer are to be issued to a person other than the person(s) signing this Letter of Transmittal; or
(b) check(s) are to be sent to any person other than the person signing this Letter of Transmittal, or to the person signing this Letter of Transmittal, but at a different address, then, in each such case, you must complete the boxes captioned “Special Payment Instructions” and/or “Special Delivery Instructions” as applicable in this Letter of Transmittal and make sure that the signatures herein are guaranteed as described in Instructions 1 and 5.
8. Taxpayer Identification Number and Certain U.S. Withholding Taxes. Under U.S. federal income tax laws, the Depositary will be required to withhold a percentage of the amount of any payments made to certain shareholders or other payees pursuant to the Offer. In order to avoid such backup withholding, each tendering shareholder that is a “U.S. person” (as defined below) must provide the Depositary with such shareholder’s correct taxpayer identification number (“TIN”) and certify that the shareholder or payee is not subject to backup withholding by completing the Internal Revenue Service (“IRS”) Form W-9 set forth below. In certain circumstances, a person acting on behalf of a shareholder that is a U.S. person may be required to file an IRS Form W-8IMY or other applicable IRS Form and all required attachments to establish that a payment to the shareholder is not subject to backup withholding. In order for a “Non-U.S. shareholder” (as defined in Section 6 of the Offer to Purchase) to establish that it is not subject to backup withholding, that shareholder must submit an IRS Form W-8BEN, W-8BEN-E or other appropriate W-8 form, as applicable, signed under penalties of perjury, instead of the IRS Form W-9. An IRS Form W-8BEN, W-8BEN-E or other W-8 form, as applicable, may be obtained from the Depositary or downloaded from the IRS’s website at the following address: http://www.irs.gov.
A shareholder is a U.S. person if the shareholder is, for U.S. federal income tax purposes, (i) a citizen or a resident of the United States (including a U.S. resident alien), (ii) a corporation (or other entity taxable as a corporation) created or organized in the United States or under the laws of the United States or any state thereof or the District of Columbia, (iii) an estate whose income is subject to U.S. federal income tax regardless of its source, or (iv) a trust if (x) a U.S. court can exercise primary supervision over the trust’s administration and one or more U.S. persons are authorized to control all substantial decisions of the trust or (y) the trust has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds any shares, the tax treatment of an owner of such an entity or arrangement will generally depend on the status of the owner and the activities of the entity or arrangement.
If the Depositary is not provided with correct information on the IRS Form W-9, the shareholder may be subject to penalties imposed by the IRS and payments that are made to such shareholder pursuant to the Offer may be subject to backup withholding.
In order to satisfy the Depositary that a Non-U.S. shareholder is not subject to backup withholding, such shareholder must submit an applicable IRS tax form, signed under penalties of perjury, establishing that shareholder’s exempt status. Such tax forms can be obtained from the Depositary or downloaded from the IRS's website at the following address: http://www.irs.gov.
For further information concerning backup withholding and instructions for completing the IRS Form W-9 (including how to obtain a TIN if you do not have one and how to complete the IRS Form W-9 if shares are held in more than one name), consult the instructions included with the IRS Form W-9 set forth below.
Failure to complete the IRS Form W-9 or appropriate IRS Form W-8, as applicable, will not, by itself, cause shares to be deemed invalidly tendered, but may require the Depositary to withhold a percentage of the amount of any payments made pursuant to the Offer. Backup withholding is not an additional U.S. federal income tax. Rather, the U.S. federal income tax liability, if any, of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, the taxpayer may obtain a refund, provided that the required information is timely furnished to the IRS.
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NOTE: FAILURE TO COMPLETE AND RETURN THE IRS FORM W-9 OR APPROPRIATE FORM W-8, AS APPLICABLE, MAY RESULT IN BACKUP WITHHOLDING OF A PERCENTAGE OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE INSTRUCTIONS INCLUDED WITH THE IRS FORM W-9 SET FORTH BELOW FOR ADDITIONAL DETAILS. YOU ARE HEREBY NOTIFIED THAT YOU SHOULD SEEK ADVICE BASED ON YOUR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
In addition, as described in Section 6 of the Offer to Purchase, if unless a reduced rate of withholding tax is applicable pursuant to an income tax treaty, or an exemption from withholding is applicable because gross proceeds paid pursuant to the Offer are effectively connected with the conduct of a trade or business within the United States (and, if an income tax treaty applies, the gross proceeds are attributable to a U.S. permanent establishment maintained by such Non-U.S. shareholder), proceeds payable pursuant to the Offer to a Non-U.S. shareholder or his, her or its agent may be subject to U.S. federal withholding tax at a rate of 30%. As the Fund may be unable to determine whether a payment made pursuant to the Offer will properly be characterized as an “exchange” or a “dividend” for U.S. tax purposes at the time of such payment, the Fund may withhold up to 30% of payments made to a Non-U.S. shareholder or its agent. In that case, a Non-U.S. shareholder may be eligible to file for a refund of such tax or a portion of such tax if all or a portion of the tender of Shares pursuant to the Offer is treated as a sale or exchange for U.S. federal income tax purposes or if such shareholder is entitled to a reduced rate of withholding pursuant to a tax treaty and the Fund withheld at a higher rate.
In order to obtain a reduced rate of withholding under a tax treaty, a Non-U.S. shareholder must deliver to the Depositary or an intermediary making a payment to a Non-U.S. shareholder, before the payment, a properly completed and executed IRS tax form claiming such an exemption or reduction. Applicable tax forms can be obtained from the Depositary. In order to claim an exemption from withholding on the grounds that gross proceeds paid pursuant to the tender offer are effectively connected with the conduct of a trade or business within the United States, a foreign shareholder must deliver to the Depositary or an intermediary making a payment to a Non-U.S. shareholder, before the payment, a properly executed IRS tax form claiming such exemption. Applicable tax forms can be obtained from the Depositary.
Additionally, proceeds payable pursuant to the Offer to a Non-U.S. shareholder (other than an individual) or its agent may be subject to a 30% withholding tax under Chapter 4 of the Code, commonly referred to as “FATCA,” unless such Non-U.S. shareholder establishes an exemption from such withholding tax under FATCA, typically on IRS Form W-8BEN-E (or other applicable W-8 tax form). Applicable tax forms can be obtained from the Depositary. If a payment by the Fund is subject to FATCA withholding, the Fund is required to withhold without reference to any other withholding exemption.
Non-U.S. shareholders should consult their own tax advisors regarding the application of the U.S. federal withholding tax, including their potential eligibility for a withholding tax reduction or exemption, and the refund procedure.
9. Irregularities. The Fund will determine in its sole discretion all questions as to the purchase price, the number of shares to accept, and the validity, eligibility (including time of receipt), and acceptance for payment of any tender of shares. Any such determinations will be final and binding on all parties. The Fund reserves the absolute right to reject any or all tenders of shares it determines not to be in proper form or the acceptance of which or payment for which may, in the opinion of the Fund, be unlawful. The Fund also reserves the absolute right to waive any of the conditions of the Offer and any defect or irregularity in the tender of any particular shares, and the Fund’s interpretation of the terms of the Offer, including these instructions, will be final and binding on all parties. No tender of shares will be deemed to be properly made until all defects and irregularities have been cured or waived. Unless waived, any defects or irregularities in connection with tenders must be cured within such time as the Fund shall determine. None of the Fund, the Depositary, the Information Agent or any other person is or will be obligated to give notice of any defects or irregularities in tenders and none of them will incur any liability for failure to give any such notice.
10. Questions; Requests for Assistance and Additional Copies. Please direct any questions or requests for assistance or for additional copies of the Offer to Purchase or the Letter of Transmittal to the Information Agent at the telephone number and address set forth on the last page of this Letter of Transmittal. You may also contact your broker, dealer, commercial bank or trust company for assistance concerning the Offer.
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Print or type.
See Specific Instructions on page 3.
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Form W-9 (Rev. October 2018) Department of the Treasury Internal Revenue Service |
Request for Taxpayer Identification Number and Certification
u Go to www.irs.gov/FormW9 for instructions and the latest information. |
Give Form to the requester. Do not send to the IRS. |
1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank.
2 Business name/disregarded entity name, if different from above
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3 Check appropriate box for federal tax classification
of the person whose name is entered on line 1. Check only one of the following seven
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4 Exemptions (codes apply only to certain entities, not individuals; see instructions on page 3): | |||||||||||||||||||||||
| ☐ |
Individual/sole proprietor or
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☐ |
C Corporation
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S Corporation
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☐ |
Partnership
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☐ |
Trust/estate
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Exempt payee code (if any) | ||||||||||||||
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☐ Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) u
Note: Check the appropriate box in the line above
for the tax classification of the single-member owner. Do not check LLC if the |
Exemption from FATCA reporting code (Applies to accounts maintained outside the U.S.) | |||||||||||||||||||||||
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☐ Other (see instructions) u
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5 Address (number, street, and apt. or suite no.) See instructions.
Requester’s name and address (optional)
6 City, state, and ZIP code
7 List account number(s) here (optional)
| Part I | Taxpayer Identification Number (TIN) |
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Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later.
Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. |
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| Social security number | ||||||||||||||||||||||
| – | – | |||||||||||||||||||||
| or | ||||||||||||||||||||||
| Employer identification number | ||||||||||||||||||||||
| – | ||||||||||||||||||||||
| Part II | Certification |
Under penalties of perjury, I certify that:
| 1. | The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and |
| 2. | I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and |
| 3. | I am a U.S. citizen or other U.S. person (defined below); and |
| 4. | The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. |
| 10 |
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.
| Sign Here |
Signature of U.S. person u |
Date u |
General Instructions
Section references are to the Internal Revenue Code unless otherwise noted.
Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9.
Purpose of Form
An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following.
• Form 1099-INT (interest earned or paid)
• Form 1099-DIV (dividends, including those from stocks or mutual funds)
• Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)
• Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)
• Form 1099-S (proceeds from real estate transactions)
• Form 1099-K (merchant card and third party network transactions)
• Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)
• Form 1099-C (canceled debt)
• Form 1099-A (acquisition or abandonment of secured property)
Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.
If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later
| Cat. No. 10231X | Form W-9 (Rev. 10-2018) |
| Form W-9 (Rev. 10-2018) | Page 2 |
By signing the filled-out form, you:
1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners’ share of effectively connected income, and
4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information.
Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9.
Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are:
● An individual who is a U.S. citizen or U.S. resident alien;
● A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States;
● An estate (other than a foreign estate); or
● A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners’ share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income.
In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States.
● In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity;
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● In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and
● In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items.
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233.
Backup Withholding
What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the instructions for Part II for details),
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information.
Also see Special rules for partnerships, earlier.
What is FATCA Reporting?
The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information.
Updating Your Information
You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.
| Form W-9 (Rev. 10-2018) | Page 3 |
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Specific Instructions
Line 1
You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return.
If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9.
a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name.
Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7application, line 1a. This should also be the same as the name you entered on the Form 1040/1040A/1040EZ you filed with your application.
b. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or “doing business as” (DBA) name on line 2.
c. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entity’s name as shown on the entity’s tax return on line 1 and any business, trade, or DBA name on line 2.
d. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2.
e. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a “disregarded entity.” See Regulations section 301.7701-2(c)(2)(iii). Enter the owner’s name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner’s name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on line 2, “Business name/disregarded entity name.” If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9.This is the case even if the foreign person has a U.S. TIN.
Line 2
If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2.
Line 3
Check the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3.
|
IF the entity/person on line 1 is a(n) . . . |
THEN check the box for . . . | ||
| ● Corporation | Corporation | ||
|
● Individual
● Sole proprietorship, or
● Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes.
|
Individual/sole proprietor or single-member LLC | ||
|
● LLC treated as a partnership for U.S. federal tax purposes,
● LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or
● LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes.
|
Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation) |
||
|
● Partnership
|
Partnership | ||
|
● Trust/estate
|
Trust/estate |
Line 4, Exemptions
If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you.
Exempt payee code.
● Generally, individuals (including sole proprietors) are not exempt from backup withholding.
● Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends.
● Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions.
● Corporations are not exempt from backup withholding with respect to attorneys’ fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC.
The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4.
1 – An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2)
2 – The United States or any of its agencies or instrumentalities
3 – A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
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4 – A foreign government or any of its political subdivisions, agencies, or instrumentalities
5 – A corporation
6 – A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession
7 – A futures commission merchant registered with the Commodity Futures Trading Commission
8 – A real estate investment trust
9 – An entity registered at all times during the tax year under the Investment Company Act of 1940
10 – A common trust fund operated by a bank under section 584(a)
11 – A financial institution
12 – A middleman known in the investment community as a nominee or custodian
13 – A trust exempt from tax under section 664 or described in section 4947
| Form W-9 (Rev. 10-2018) | Page 4 |
The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13.
| IF the payment is for . . . | THEN the payment is exempt for . . . | |
|
Interest and dividend payments
|
All exempt payees except
| |
| Broker transactions |
Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012.
| |
|
Barter exchange transactions and patronage dividends
|
Exempt payees 1 through 4 | |
|
Payments over $600 required to be reported and direct sales over $5,0001
|
Generally, exempt payees 1 through 52 | |
|
Payments made in settlement of payment card or third party network transactions
|
Exempt payees 1 through 4 |
| 1 | See Form 1099-MISC, Miscellaneous Income, and its instructions. |
| 2 | However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. |
Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with “Not Applicable” (or any similar indication) written or printed on the line for a FATCA exemption code.
A – An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37)
B – The United States or any of its agencies or instrumentalities
C – A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
D – A corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i)
E – A corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i)
F – A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state
G – A real estate investment trust
H – A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940
I – A common trust fund as defined in section 584(a)
J – A bank as defined in section 581
K – A broker
L – A trust exempt from tax under section 664 or described in section 4947(a)(1)
M – A tax exempt trust under a section 403(b) plan or section 457(g) plan
Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed.
Line 5
Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW
at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records.
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Line 6
Enter your city, state, and ZIP code.
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below.
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN.
If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owner’s SSN (or EIN, if the owner has one). Do not enter the disregarded entity’s EIN. If the LLC is classified as a corporation or partnership, enter the entity’s EIN.
Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 1-800-772-1213.Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website atwww.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7and/or SS-4 mailed to you within 10 business days.
If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
Note: Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon.
Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise.
For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier.
Signature requirements. Complete the certification as indicated in items 1 through 5 below.
1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form.
3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification.
4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
| Form W-9 (Rev. 10-2018) | Page 5 |
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification.
What Name and Number To Give the Requester
| For this type of account: | Give name and SSN of: | |||||
| 1. | Individual | The individual | ||||
| 2. | Two or more individuals (joint account) other than an account maintained by an FFI | The actual owner of the account or, if combined funds, the first individual on the account1 | ||||
| 3. | Two or more U.S. persons (joint account maintained by an FFI) | Each holder of the account | ||||
| 4. | Custodial account of a minor (Uniform Gift to Minors Act) | The minor2 | ||||
| 5. | a. The usual revocable savings trust (grantor is also trustee) | The grantor-trustee1 | ||||
| b. So-called trust account that is not a legal or valid trust under state law | The actual owner1 | |||||
| 6. | Sole proprietorship or disregarded entity owned by an individual | The owner3 | ||||
| 7. | Grantor trust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A)) | The grantor* | ||||
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| For this type of account: | Give name and EIN of: | |||||
| 8. | Disregarded entity not owned by an individual | The owner | ||||
| 9. | A valid trust, estate, or pension trust | Legal entity4 | ||||
| 10. | Corporation or LLC electing corporate status on Form 8832 or Form 2553 | The corporation | ||||
| 11. | Association, club, religious, charitable, educational, or other tax-exempt organization | The organization | ||||
| 12. | Partnership or multi-member LLC | The partnership | ||||
| 13. | A broker or registered nominee | The broker or nominee | ||||
| 14. | Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | The public entity | ||||
| 15. | Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B)) | The trust | ||||
| 1 | List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished. |
| 2 | Circle the minor’s name and furnish the minor’s SSN. |
| 3 | You must show your individual name and you may also enter your business or DBA name on the “Business name/disregarded entity” name line. You |
| may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN. |
| 4 | List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier. |
| *Note: | The grantor also must provide a Form W-9 to trustee of trust. |
Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.
Secure Your Tax Records From Identity Theft
Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
To reduce your risk:
● Protect your SSN,
● Ensure your employer is protecting your SSN, and
● Be careful when choosing a tax preparer.
If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.
If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
For more information, see Pub. 5027, Identity Theft Information for Taxpayers.
Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.
If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027.
Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk.
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Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
Important: The Depositary must receive this Letter of Transmittal (together with confirmation of the book-entry transfer and all other required documents) before the Expiration Date, as defined in the Offer to Purchase.
The Letter of Transmittal and any other required documents should be sent or delivered by each tendering shareholder or its broker, dealer, commercial bank, trust company or other nominee to the Depositary at one of its addresses set forth on the first page of this Letter of Transmittal.
Any questions, requests for assistance or for additional copies of the Offer to Purchase or the Letter of Transmittal may be directed to EQ Fund Solutions, LLC, the Information Agent, at the telephone number and address set forth below. You may also contact your broker, dealer, commercial bank or trust company for assistance concerning the tender offer. To confirm delivery of your shares, please contact the Depositary.
| 17 |
The Depositary for the Offer is:
|
If delivering by hand, mail, express mail, courier or any other expedited service:
Equiniti Trust Company, LLC
Toll-Free (877) 248-6417
If delivering by facsimile transmission: (718) 234-5001 |
The Information Agent for the Offer is:
EQ Fund Solutions, LLC
48 Wall Street, 22nd Floor
New York, New York 10005
Toll-Free (888) 542-7446
Exhibit (a)(1)(iii)
OFFER BY
EATON VANCE SENIOR INCOME TRUST
Two International Place
Boston, Massachusetts 02110
(800) 262-1122
To Purchase for Cash Up to 10% or 1,753,886 of its Outstanding Common Shares of Beneficial Interest
At 98% of Net Asset Value Per Share
THE FUND’S OFFER WILL EXPIRE ON OCTOBER 25, 2023 AT 5:00 P.M., EASTERN TIME,
UNLESS THE OFFER IS EXTENDED.
September 26, 2023
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the Investment Company Act of 1940, as amended, as a closed-end management investment company (the “Fund” or “we”), is proposing to purchase for cash up to 1,753,886 (i.e., up to 10%) of its issued and outstanding common shares of beneficial interest at a price per share equal to 98% of its net asset value (“NAV”) per share as of the close of regular trading of the New York Stock Exchange (“NYSE”) on the date the offer expires, or if the offer period is extended, as of the close of regular trading of the NYSE on the newly designated expiration date, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 26, 2023, and the related Letter of Transmittal (which together, as they may be amended and supplemented from time to time, constitute the “Offer”). Please furnish copies of the enclosed materials to those of your clients for whom you hold shares registered in your name or in the name of your nominee.
All shares validly tendered before 5:00 p.m., Eastern Time on October 25, 2023 or the latest date to which the Fund extends the Offer (the later of October 25, 2023 and the latest time or date to which the Offer is extended is hereafter called the “Expiration Date”) and not properly withdrawn will be purchased by the Fund at a price per share equal to 98% of its NAV per share as of the close of regular trading of the NYSE on the Expiration Date, subject to the terms and conditions of the Offer, including proration provisions. All shares that the Fund does not accept for purchase because of proration will be returned at the Fund’s expense to the shareholders that tendered such shares promptly after the Expiration Date.
As described in the Offer to Purchase, if more than 10% or 1,753,886 shares are validly tendered and not properly withdrawn before the Expiration Date, then the Fund will purchase validly tendered shares tendered at a price per share equal to 98% of its NAV per share as of the close of regular trading of the NYSE on the Expiration Date on a pro rata basis (disregarding fractional shares). As such, shareholders cannot be assured that all of their tendered shares will be repurchased.
The Offer is not conditioned on any minimum number of shares being tendered. The Offer is, however, subject to other conditions. See Sections 1 and 13 of the Offer to Purchase.
For your information and for forwarding to your clients for whom you hold shares registered in your name or in the name of your nominee, we are enclosing the following documents:
1. Offer to Purchase, dated September 26, 2023;
2. Form of Letter to Clients, which you may send to your clients for whom you hold shares registered in your name or in the name of your nominee, with an accompanying Instruction Form provided for obtaining such clients’ instructions with regard to the Offer;
3. Form of Letter of Transmittal, for your use and for the information of your clients, together with accompanying instructions, Internal Revenue Service Form W-9 and the instructions included therewith;
4. Return envelope addressed to Equiniti Trust Company, LLC, the depositary for the Offer (the “Depositary”).
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE FUND’S OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON OCTOBER 25, 2023, UNLESS THE OFFER IS EXTENDED.
No fees or commissions will be payable to brokers, dealers, commercial banks, trust companies or any person for soliciting tenders of shares under the Offer other than fees paid to EQ Fund Solutions, LLC, the information agent for the Offer (the “Information Agent”), as described in the Offer to Purchase. We will, however, upon request, reimburse or cause to be reimbursed brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding the enclosed materials to their customers who are beneficial owners of shares held by them as a nominee or in a fiduciary capacity. We will pay or cause to be paid any stock transfer taxes applicable to our purchase of shares pursuant to the Offer, except as otherwise provided in the Offer to Purchase and Letter of Transmittal (see Instruction 6 of the Letter of Transmittal). No broker, dealer, bank, trust company or fiduciary shall be deemed to be an agent of the Fund, the Information Agent or the Depositary or any affiliate of the foregoing for purposes of the Offer.
For shares to be validly tendered pursuant to the Offer, the Depositary must timely receive confirmation of receipt of such shares under the procedure for book-entry transfer, together with a properly completed and duly executed Letter of Transmittal, including any required signature guarantees or an “agent’s message” (as defined in the Offer to Purchase and the Letter of Transmittal) and any other documents required pursuant to the Offer, all in accordance with the instructions set forth in the Offer to Purchase and Letter of Transmittal.
None of the Fund, its Board of Trustees, Eaton Vance Management, the Fund’s investment adviser, or its Information Agent makes any recommendation to any shareholder as to whether to tender or refrain from tendering any shares. Shareholders should carefully evaluate all information in the Offer, should consult their own investment and tax advisors, and should make their own decisions about whether to tender shares, and, if so, how many shares to tender. The Offer is not being made to (nor will tenders be accepted from or on behalf of) shareholders in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the laws of such jurisdiction.
Please address any inquiries you may have with respect to the Information Agent at its address set forth on the back cover page of the Offer to Purchase and telephone number set forth below.
You may obtain additional copies of the enclosed material from the Information Agent by calling it at: (888) 542-7446.
Capitalized terms used but not defined herein have the meanings assigned to them in the Offer to Purchase and the Letter of Transmittal.
| Very truly yours, |
| Eaton Vance Senior Income Trust |
Enclosures
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AN AGENT OF THE FUND, THE INFORMATION AGENT OR THE DEPOSITARY OR ANY AFFILIATE OF THE FOREGOING, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
Exhibit (a)(1)(iv)
OFFER BY
EATON VANCE SENIOR INCOME TRUST
Two International Place
Boston, Massachusetts 02110
(800) 262-1122
To Purchase For Cash Up to 10% or 1,753,886 of its Outstanding Common Shares of Beneficial Interest
At 98% of Net Asset Value Per Share
THE FUND’S OFFER WILL EXPIRE ON OCTOBER 25, 2023 AT 5:00 P.M. EASTERN TIME,
UNLESS THE OFFER IS EXTENDED.
September 26, 2023
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated September 26, 2023, and the related Letter of Transmittal (which together, as they may be amended and supplemented from time to time, constitute the “Offer”), in connection with the offer by Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the Investment Company Act of 1940, as amended, as a closed-end management investment company (the “Fund”), to purchase for cash up to 1,753,886 (i.e., up to 10%) of its issued and outstanding common shares of beneficial interest at a price per share equal to 98% of its net asset value (“NAV”) per share as of the close of regular trading of the New York Stock Exchange (“NYSE”) on the date the Offer expires, upon the terms and subject to the conditions of the Offer.
All shares validly tendered before 5:00 p.m. Eastern Time on October 25, 2023 or the latest date to which the Fund extends the Offer (the later of October 25, 2023 and the latest time or date to which the Offer is extended is hereafter called the “Expiration Date”) and not properly withdrawn will be purchased by the Fund at a price per share equal to 98% of its NAV per share as of the close of regular trading of the NYSE on the Expiration Date, subject to the terms and conditions thereof, including proration provisions. All shares that the Fund does not accept for purchase because of proration will be returned at the Fund’s expense to the shareholders that tendered such shares promptly after the Expiration Date.
We are the owner of record of shares held for your account. As such, we are the only ones who can tender your shares, and then only pursuant to your instructions. We are sending you the Letter of Transmittal for your information only. You cannot use the Letter of Transmittal to tender shares we hold for your account.
Please instruct us as to whether you wish us to tender, on the terms and subject to the conditions of the Offer, any or all of the shares we hold for your account, by completing and signing the Instruction Form enclosed herein.
Please note carefully the following:
1. You should consult with your broker and/or tax advisor as to whether (and if so, in what manner) you should designate the priority in which you want your tendered shares to be purchased if less than all of your shares are to be purchased;
2. The Offer is not conditioned upon any minimum number of shares being tendered. The Offer is, however, subject to other conditions set forth in Sections 1 and 13 of the Offer to Purchase, which you should read carefully.
3. The Offer and the withdrawal rights will expire at 5:00 p.m. Eastern Time on October 25, 2023, unless the Offer is extended.
4. The Offer is for up to 1,753,886 (i.e., up to 10%) of the Fund’s issued and outstanding shares of common stock as of October 25, 2023.
5. No fees or commissions will be payable to the Fund in connection with the Offer. However, brokers and other nominees who tender their shares of common stock pursuant to your instructions may charge you a fee for doing so. Any stock transfer taxes applicable to the sale of shares of common stock to the Fund pursuant to the Offer will be paid by the Fund except as otherwise provided in the Offer to Purchase and Letter of Transmittal (see Instruction 6 of the Letter of Transmittal).
6. The Board of Trustees of the Fund (the “Board”) has approved the Offer. However, none of the Fund, its Board, Eaton Vance Management, the Fund’s investment adviser, or EQ Fund Solutions, LLC, the information agent for the Offer (the “Information Agent”), makes any recommendation to any shareholder as to whether to tender or refrain from tendering any shares. Shareholders should carefully evaluate all information in the Offer, should consult their own investment and tax advisors, and should make their own decisions about whether to tender shares, and, if so, how many shares to tender.
The current NAV per share of the Fund will be calculated daily and may be obtained by calling the Information Agent at (888) 542-7446 (toll-free).
If you wish to have us tender any or all of your shares, please instruct us to that effect by completing, executing and returning to us the enclosed Instruction Form. If you authorize us to tender your shares, we will tender all of the shares that we hold beneficially for your account unless you specify otherwise on the enclosed Instruction Form.
Please forward your completed Instruction Form to us in a timely manner to give us ample time to permit us to submit the tender on your behalf before the Expiration Date of the Offer. The Offer and withdrawal rights will expire at 5:00 p.m. Eastern Time on October 25, 2023, unless the Fund extends the Offer.
As described in the Offer to Purchase, if more than 10% or 1,753,886 shares are validly tendered and not properly withdrawn before the Expiration Date, then the Fund will purchase validly tendered shares on a pro rata basis (disregarding fractional shares). As such, you cannot be assured that all of your tendered shares will be repurchased.
The Offer is being made solely under the Offer to Purchase and the Letter of Transmittal. The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of shares residing in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction.
Payment for shares purchased pursuant to the Offer will in all cases be made only after timely receipt by Equiniti Trust Company, LLC, the depositary for the Offer (the “Depositary”), of: (a) timely confirmation of the book-entry transfer of such shares into the account maintained by the Depositary at The Depository Trust Company (the “Book-Entry Transfer Facility”) pursuant to the procedures set forth in Section 3 of the Offer to Purchase; (b) an agent’s message (as defined in the Offer to Purchase), in connection with a book-entry delivery, or the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees; and (c) any other documents required by the Letter of Transmittal. Accordingly, payment may not be made to all tendering shareholders at the same time depending upon when confirmation of book-entry transfer of such shares into the Depositary’s account at the Book-Entry Transfer Facility are actually received by the Depositary.
YOUR PROMPT ACTION IS REQUESTED. PLEASE FORWARD YOUR COMPLETED INSTRUCTION FORM TO US IN AMPLE TIME TO PERMIT US TO SUBMIT THE TENDER ON YOUR BEHALF BEFORE THE EXPIRATION OF THE OFFER.
INSTRUCTION FORM
With Respect to the Offer by
EATON VANCE SENIOR INCOME TRUST
to Purchase for Cash up to 10% or 1,753,886 of its Outstanding Common Shares of Beneficial Interest
at 98% of Net Asset Value per Share
The undersigned acknowledge(s) receipt of your letter in connection with the offer by Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the Investment Company Act of 1940, as amended, as a closed-end management investment company (the “Fund”), to purchase for cash up to 1,753,886 (i.e., up to 10%) of its issued and outstanding common shares of beneficial interest at a price per share equal to 98% of its net asset value (“NAV”) per share as of the close of regular trading of the New York Stock Exchange (“NYSE”) on the date the offer expires, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 26, 2023, and the related Letter of Transmittal (which, together with any supplements or amendments thereto, collectively constitute the “Offer”).
All shares validly tendered before 5:00 p.m. Eastern Time on October 25, 2023, or the latest date to which the Fund extends the Offer, whichever is later (the “Expiration Date”) and not properly withdrawn will be purchased by the Fund at a price per share equal to 98% of its NAV per share as of the close of regular trading of the NYSE on the Expiration Date, subject to the terms and conditions of the Offer, including proration provisions. All shares that the Fund does not accept for purchase because of proration will be returned at the Fund’s expense to the shareholders that tendered such shares promptly after the Expiration Date.
The undersigned hereby instruct(s) you to tender to the Fund the number of shares indicated below or, if no number is indicated, all shares you hold for the account of the undersigned, in accordance with the terms and subject to the conditions of the Offer.
NUMBER OF SHARES TO BE TENDERED BY YOU FOR
THE ACCOUNT OF THE UNDERSIGNED:
SHARES*
| * | Unless you indicate otherwise, we will assume that you are instructing us to tender all of the shares that we hold for your account. |
THE METHOD OF DELIVERY OF THIS DOCUMENT IS AT THE OPTION AND RISK OF THE
TENDERING SHAREHOLDER. IF DELIVERY IS BY MAIL, WE RECOMMEND REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED. IN ALL CASES, PLEASE ALLOW
SUFFICIENT TIME TO ENSURE DELIVERY.
-PLEASE SIGN ON THE NEXT PAGE-
| Signature(s): | ||
| Name(s): | ||
| (Please Print) | ||
| Address(es): | ||
| (Please Include Zip Code) | ||
| Telephone Number(s), including Area Code(s): | ||
| Taxpayer ID or Social Security No.: | ||
| Dated: | ||
Exhibit (a)(1)(v)
Instructions for Withdrawal
of
Previously Tendered Common Shares of Beneficial Interest
of
Eaton Vance Senior Income Trust
If you tendered shares to Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the Investment Company Act of 1940, as amended, as a closed-end management investment company (the “Fund”), in connection with the offer by the Fund to purchase for cash up to 1,753,886 (i.e., up to 10%) of its issued and outstanding common shares of beneficial interest, with par value of $.01 per share (the “Shares”), upon the terms and subject to the conditions set forth in the Offer to Purchase dated September 26, 2023 and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), and you wish to withdraw your tender of all or any of your Shares, please fill out the attached Notice of Withdrawal. If your Shares are registered in the name of your broker, dealer, commercial bank, trust company or other nominee (“Nominee Holder”), please contact that Nominee Holder to withdraw your tendered Shares.
1. Withdrawal. If you have tendered your Shares pursuant to the Offer, you may withdraw your Shares previously tendered by completing, executing and sending the attached “Notice of Withdrawal” to any one of the addresses set forth on the first page of the Notice of Withdrawal. If your Shares are registered in the name of your Nominee Holder, please contact that Nominee Holder to withdraw your tendered Shares.
2. Delivery of Notice of Withdrawal. Equiniti Trust Company, LLC (the “Depositary”) must receive the Notice of Withdrawal prior to 5:00 p.m., Eastern Time, on October 25, 2023 (the “Expiration Date”), or if the Offer period is extended, by the close of regular trading of the New York Stock Exchange on the newly designated expiration date (the later of October 25, 2023 and the latest time or date to which the Offer is extended is hereafter called the “Expiration Date”). The method of delivery of any documents related to a withdrawal is at the option and risk of the withdrawing holder of Shares. Any documents related to a withdrawal will be deemed delivered only when actually received by the Depositary. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery. If your Shares are registered in the name of your Nominee Holder, you may need to allow such Nominee Holder additional time to withdraw your tendered Shares on or before the Expiration Date. You should consult your Nominee Holder to determine if there is an earlier deadline by which you must inform such Nominee Holder of any decision to withdraw your tendered Shares.
3. Procedures and Signatures. The Notice of Withdrawal must specify the name of the person who tendered the Shares to be withdrawn and the number of Shares to be withdrawn and the name of the registered holder of Shares, if different from that of the person who tendered such Shares. The Notice of Withdrawal must specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn Shares (which must be the same name, number, and book-entry transfer facility from which the Shares were tendered), and must comply with the procedures of The Depository Trust Company. If this Notice of Withdrawal is signed by trustees, executors, administrators, guardians, agents, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, should indicate location of signing and must submit proper evidence satisfactory to the Fund of their authority to so act.
| 1 |
NOTICE OF WITHDRAWAL
of Common Shares of Beneficial Interest (“Shares”)
of
Eaton Vance Senior Income Trust
Previously Tendered
Pursuant to the Offer to Purchase Dated September 26, 2023
THE WITHDRAWAL DEADLINE IS 5:00 P.M., EASTERN TIME,
ON OCTOBER 25, 2023, UNLESS EXTENDED
This Notice of Withdrawal is Submitted to:
Equiniti Trust Company, LLC
via Email: Domenick.Apisa@Equiniti.com
|
If delivering by hand, mail, express mail, courier or any other expedited service:
Equiniti Trust Company, LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219
|
|
If delivering by facsimile transmission:
718-234-5001 |
| DESCRIPTION OF SHARES WITHDRAWN | |
| Name(s), Account Number(s) and Addresses of Registered Holder(s): (Please Fill in, if Blank, Exactly as Name(s) Appear(s) on Account Registration) | Number of Shares Withdrawn (Please check appropriate box below)* |
|
Number of Shares Withdrawn
| |
* Unless otherwise indicated, it will be assumed that all Shares held in the Direct Registration System, including any Shares held in the Fund’s distribution reinvestment plan, are being withdrawn.
This Notice of Withdrawal is to be completed if you tendered Shares of Eaton Vance Senior Income Trust, a Massachusetts business trust registered under the Investment Company Act of 1940, as amended, as a closed-end management investment company, in connection with its offer to purchase for cash up to 10% or 1,753,886 of its outstanding Shares, and you wish to withdraw some or all of the Shares tendered.
Signatures are required on the next page.
| 2 |
NOTE: SIGNATURE(S) MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS
NOTICE OF WITHDRAWAL CAREFULLY.
| Signature(s) of Owner(s): | ||
| Date: | , 2023 | |
| Printed Names: | ||
| Capacity (full title): | ||
| Address: | ||
| 3 |
Exhibit (a)(5)(ii)
Investor Contact: (800) 262-1122
FOR IMMEDIATE RELEASE
EATON VANCE FLOATING-RATE INCOME TRUST AND EATON VANCE SENIOR INCOME TRUST ANNOUNCE COMMENCEMENT OF TENDER OFFERS
BOSTON, MA, September 26, 2023 — Eaton Vance Floating-Rate Income Trust (NYSE: EFT) and Eaton Vance Senior Income Trust (NYSE: EVF) (each, a “Fund,” and, together, the “Funds”) each announced today the commencement of a cash tender offer (each, a “Tender Offer,” and together, the “Tender Offers”).
As previously announced, each Fund will purchase for cash up to 10% of its outstanding common shares at a price per share equal to 98% of its net asset value (“NAV”) per share, determined as of the close of regular trading on the NYSE on the day the Tender Offer expires. Each Tender Offer will expire on October 25, 2023 at 5:00 p.m. Eastern Time or on such later date to which the offer is extended. If the number of common shares tendered exceeds the maximum amount of a Tender Offer, the Fund will purchase shares from tendering shareholders on a pro-rata basis (disregarding fractional shares). Accordingly, there is no assurance that a Fund will purchase all of a shareholder's tendered common shares in connection with the relevant Tender Offer. A Fund may determine not to accept shares tendered in the Tender Offer under various circumstances, as set forth in the offering materials.
Each Fund may sell portfolio instruments during the pendency of its Tender Offer to raise cash for the purchase of common shares. Thus, it is likely that during the pendency of each Tender Offer, and possibly for a short time thereafter, each Fund will hold a greater than normal percentage of its net assets in cash and cash equivalents. This larger cash position may interfere with a Fund’s ability to meet its investment objectives and invest consistent with its investment strategy.
Each Tender Offer is being made on the terms and subject to the conditions set forth in the relevant Fund’s tender offer statement on Schedule TO (including an offer to purchase, a related letter of transmittal and other offer documents) that has been filed with the Securities and Exchange Commission (the “SEC”). All of these documents contain important information about the relevant Tender Offer. Shareholders of each Fund should read their documents carefully as they contain important information about the relevant Tender Offer. Shareholders of each Fund can obtain a free copy of the relevant documents at the SEC’s website at www.sec.gov or from the Fund by calling EQ Fund Solutions, LLC, the Fund’s information agent for the tender offer, at (877) 542-7446.
This press release is not a recommendation, an offer to purchase, or a solicitation of an offer to sell shares of the Funds and is not a prospectus, circular or representation intended for use in the purchase or sale of Fund shares.
# # #
About Eaton Vance
Eaton Vance applies in-depth fundamental analysis to the active management of equity, income, alternative and multi-asset strategies. Eaton Vance’s investment teams follow time-tested principles of investing that emphasize ongoing risk management, tax management (where applicable) and the pursuit of consistent long-term returns. The firm’s investment capabilities encompass the global capital markets. Eaton Vance is a part of Morgan Stanley Investment Management, the asset management division of Morgan Stanley.
About the Funds
Except for sales of shares pursuant to a tender offer, common shares of each Fund are available for purchase or sale only through secondary market trading at their current market price. Shares of closed-end funds (such as the Funds) often trade at a discount from their NAV. The market price of Fund shares may vary from NAV based on factors affecting the supply and demand for shares, such as Fund distribution rates relative to similar investments, investors’ expectations for future distribution changes, the clarity of the Fund’s investment strategy and future return expectations, and investors’ confidence in the underlying markets in which the Fund invests. Fund shares are subject to investment risk, including possible loss of principal invested. Fund shares are not FDIC-insured and are not deposits or other obligations of, or guaranteed by, any bank. No Fund is a complete investment program and you may lose money investing in a Fund. An investment in a Fund may not be appropriate for all investors. Before investing in a Fund, prospective investors should consider carefully the Fund’s investment objective, strategies, risks, charges and expenses.
Important Notice
This announcement is not a recommendation, an offer to purchase or a solicitation of an offer to sell shares of a Fund. The Tender Offers will be made only by an offer to purchase, a related letter of transmittal and other documents filed with the SEC as exhibits to a tender offer statement on Schedule TO, with all such documents available on the SEC’s website at www.sec.gov. For each Tender Offer, the relevant Fund will also make available to shareholders without charge the offer to purchase and the letter of transmittal. Shareholders should read these documents carefully, as they contain important information about the relevant Tender Offer.
This press release is for informational purposes only and is not intended to, and does not, constitute an offer to purchase or sell shares of the Funds. Additional information about the Funds, including performance and portfolio characteristic information, is available at eatonvance.com.
Statements in this press release that are not historical facts are “forward-looking statements” as defined by the U.S. securities laws. You should exercise caution in interpreting and relying on forward-looking statements because they are subject to uncertainties and other factors which are, in some cases, beyond a Fund’s control and could cause actual results to differ materially from those set forth in the forward-looking statements. All forward-looking statements are as of the date of this release only; each Fund undertakes no obligation to update or review any forward-looking statements.
Exhibit (b)(i)
CREDIT AGREEMENT
dated as of May 4, 2023 among
EATON VANCE SENIOR INCOME TRUST, STATE STREET BANK AND TRUST COMPANY,
and the other lending institutions party hereto and
STATE STREET BANK AND TRUST COMPANY
in its capacity as Agent
Bryan Cave Leighton Paisner LLP
1290 Avenue of the Americas
New York, New York 10104-3300
TABLE OF CONTENTS
Page
| ARTICLE I DEFINITIONS | 1 | ||
| Section 1.01 | Definitions | 1 | |
| Section 1.02 | Accounting Terms and Determination | 25 | |
| Section 1.03 | Split Ratings | 26 | |
| Section 1.04 | Rates | 26 | |
| ARTICLE II THE CREDIT | 26 | ||
| Section 2.01 | Commitments to Lend | 26 | |
| Section 2.03 | Notice to Banks; Funding of Loans | 27 | |
| Section 2.04 | Loan Accounts; Notes; Records | 28 | |
| Section 2.05 | Mandatory Payments; Optional Prepayments | 29 | |
| Section 2.06 | Interest Rates | 30 | |
| Section 2.07 | Fees | 31 | |
| Section 2.08 | Termination and Reduction of Commitments | 31 | |
| Section 2.09 | General Provisions as to Payments | 32 | |
| Section 2.10 | Computation of Interest and Fees | 34 | |
| Section 2.11 | Withholding Tax Exemption | 34 | |
| ARTICLE III CONDITIONS | 35 | ||
| Section 3.01 | Effectiveness | 35 | |
| Section 3.02 | All Borrowings | 37 | |
| ARTICLE IV REPRESENTATIONS AND WARRANTIES | 38 | ||
| Section 4.01 | Existence and Power; Investment Company | 38 | |
| Section 4.02 | Authorization; Execution and Delivery, Etc | 38 | |
| Section 4.03 | Noncontravention | 39 | |
| Section 4.04 | Governmental Authorizations; Private Authorization | 39 | |
| Section 4.05 | Regulations T, U and X | 39 | |
| Section 4.06 | Non-Affiliation with Banks | 40 | |
| Section 4.07 | Subsidiaries | 40 | |
| Section 4.08 | Financial Information | 40 | |
| Section 4.09 | Litigation | 40 | |
| Section 4.10 | ERISA | 40 | |
| Section 4.11 | Taxes | 40 | |
| Section 4.12 | Compliance | 40 | |
| i |
TABLE OF CONTENTS (cont’d)
Page
| Section 4.13 | Fiscal Year | 41 |
| Section 4.14 | Full Disclosure | 41 |
| Section 4.15 | Offering Documents | 41 |
| Section 4.16 | Sanctions, etc | 41 |
| Section 4.17 | Title to Assets | 42 |
| ARTICLE V COVENANTS | 42 | |
| Section 5.01 | Information | 42 |
| Section 5.02 | Payment of Obligations | 44 |
| Section 5.03 | Maintenance of Insurance | 44 |
| Section 5.04 | Conduct of Business and Maintenance of Existence | 44 |
| Section 5.05 | Compliance with Laws | 44 |
| Section 5.06 | Inspection of Property, Books and Records | 45 |
| Section 5.07 | Indebtedness | 45 |
| Section 5.08 | Liens | 46 |
| Section 5.09 | Consolidations, Mergers and Sales of Assets | 46 |
| Section 5.10 | Use of Proceeds | 46 |
| Section 5.11 | Compliance with Investment Policies and Restrictions | 46 |
| Section 5.12 | Non-Affiliation with Banks | 46 |
| Section 5.13 | Regulated Investment Company | 47 |
| Section 5.14 | No Subsidiary | 47 |
| Section 5.15 | ERISA | 47 |
| Section 5.16 | Fiscal Year | 47 |
| Section 5.17 | Regulation U | 47 |
| Section 5.18 | Asset Coverage | 47 |
| Section 5.19 | Maximum Amount | 47 |
| Section 5.20 | Further Assurances | 47 |
| Section 5.21 | Sanctions, etc. | 47 |
| Section 5.22 | Restricted Payments | 48 |
| ARTICLE VI DEFAULTS | 48 | |
| Section 6.01 | Events of Default | 48 |
| Section 6.02 | Remedies | 50 |
| ARTICLE VII THE AGENT | 50 | |
| Section 7.01 | Appointment and Authorization | 50 |
| Section 7.02 | Action by Agent | 50 |
| ii |
TABLE OF CONTENTS (cont’d)
Page
| Section 7.03 | Consultation with Experts | 50 |
| Section 7.04 | Liability of Agent | 51 |
| Section 7.05 | Indemnification | 51 |
| Section 7.06 | Credit Decision | 51 |
| Section 7.07 | Successor Agent | 52 |
| Section 7.08 | Agent as Bank | 52 |
| Section 7.09 | Distribution by Agent | 52 |
| Section 7.10 | Delinquent Banks. | 52 |
| Section 7.11 | Erroneous Payments | 53 |
| ARTICLE VIII CHANGE IN CIRCUMSTANCES | 55 | |
| Section 8.01 | Additional Costs; Capital Adequacy | 55 |
| Section 8.02 | Inability to Determine Rates | 56 |
| Section 8.03 | Illegality | 57 |
| Section 8.04 | Benchmark Replacement Setting | 57 |
| Section 8.05 | Replacement Banks | 59 |
| Section 8.06 | Indemnity | 60 |
| ARTICLE IX MISCELLANEOUS | 60 | |
| Section 9.01 | Notices | 60 |
| Section 9.02 | No Waivers | 61 |
| Section 9.03 | Expenses; Documentary Taxes; Indemnification | 61 |
| Section 9.04 | Set Off | 62 |
| Section 9.05 | Amendments and Waivers | 62 |
| Section 9.06 | Successors and Assigns | 63 |
| Section 9.07 | Governing Law; Submission to Jurisdiction | 65 |
| Section 9.08 | WAIVER OF JURY TRIAL | 65 |
| Section 9.09 | Confidential Material | 66 |
| Section 9.10 | USA Patriot Act | 66 |
| Section 9.11 | Interest Rate Limitation | 66 |
| Section 9.12 | Survival | 67 |
| Section 9.13 | Miscellaneous | 67 |
| Section 9.14 | Limitation on Liability | 67 |
| Section 9.15 | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 67 |
| Section 9.16 | Certain ERISA Matters | 68 |
| Section 9.17 | Acknowledgement Regarding any Supported QFCs | 69 |
| iii |
TABLE OF CONTENTS (cont’d)
Exhibits:
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing Exhibit C - Form of Notice of Conversion Exhibit D - Form of Borrowing Base Report Exhibit E - Form of Assignment and Acceptance
Schedules:
Schedule 1 - Addresses for Notices, Lending Offices, Commitment Amounts and Commitment Percentages
| iv |
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of May 4, 2023 (the “Agreement”), by and among EATON VANCE SENIOR INCOME TRUST, a Massachusetts business trust (the “Borrower”), the Banks (as hereinafter defined) party hereto from time to time and STATE STREET BANK AND TRUST COMPANY as agent for the Banks (in such capacity, the “Agent”).
The parties hereto hereby agree as follows:
ARTICLE I DEFINITIONS
Section 1.01 Definitions. The following terms, as used herein, have the following meanings:
“Adjusted Net Assets” means, as at any date of determination, an amount equal to (a) the Asset Value of the Total Assets minus, without duplication, (b) Total Liabilities that are not Senior Securities Representing Indebtedness. For purposes of calculating the Adjusted Net Assets, the amount of any liability included in Total Liabilities shall be equal to the greater of (i) the outstanding amount of such liability and (ii) the fair market value of all assets pledged to secure such liability.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Adverse Claim” means any Lien or other right, claim, encumbrance or any other type of preferential arrangement in, of or on any Person’s assets or properties (including the segregation thereof or the deposit thereof to satisfy margin or other requirements) in favor of any other Person other than, in the case of the Borrower, Liens permitted under Section 5.08(a), (b) or (c).
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” has the meaning ascribed to the term “Affiliated Person” in the Investment Company Act.
“Aggregate Commitment Amount” means, as of any date, the aggregate of all Commitment Amounts as of such date. On the Effective Date, the Aggregate Commitment Amount is $45,000,000.
“Agent” has the meaning set forth in the preamble to this Agreement.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Borrower or Fund from time to time concerning or relating to bribery or corruption.
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“Applicable Law” means, with respect to any Person, any Law of any Authority, including, without limitation, all Federal and state banking or securities laws, to which such Person is subject or by which it or any of its property is bound.
“Approved Borrowing Amount” means (a) $1,000,000 or an integral multiple of $1,000,000 in excess thereof, or (b) such lesser amount as shall be equal to the excess of the Aggregate Commitment Amount over the aggregate outstanding principal balance of all Loans.
“Asset-backed Agency Security” means an Asset-backed Security (other than an Eligible U.S. Government Security) that (x) is issued or guaranteed by the Government of the United States, a United States government agency (as defined in 12 CFR 615.5201(f)), or a GSE and (y)(i) the underlying pool of assets thereof consists of residential mortgages or (ii) is collateralized by the cash flows from one or more pools of underlying assets consisting of residential mortgages.
“Asset-backed Security” means a type of bond or note that is based on one or more pools of assets (including mortgages), or collateralized by the cash flows from one or more pools of underlying assets, and includes collateralized bond obligations, collateralized loan obligations and collateralized mortgage obligations.
“Asset Value” means, as of any day of determination in respect of any asset of the Borrower, the Value of such asset computed by the Borrower in good faith in the manner such Value is required to be computed in accordance with the Pricing Procedures and Applicable Law, including, without limitation, the Investment Company Act; provided that:
(a) the Asset Value of any asset shall be net of the Borrower’s liabilities relating thereto, including without limitation all of the Borrower’s obligations to pay any unpaid portion of the purchase price thereof, and
(b) with respect to any asset that is not valued on each Domestic Business Day, the Asset Value of such asset shall be deemed zero for purposes of this definition.
“Assignee” has the meaning set forth in Section 9.06(c) hereof.
“Assignment and Acceptance” has the meaning set forth in Section 9.06(c) hereof.
“Authority” means any governmental or quasi-governmental authority (including the Financial Industry Regulatory Authority, Inc., stock exchanges, the SEC and any accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic), whether executive, legislative, judicial, administrative or other, or any combination thereof, including, without limitation, any Federal, state, territorial, county, municipal or other government or governmental or quasi-governmental agency, arbitrator, board, body, branch, bureau, commission, corporation, court, department, instrumentality, master, mediator, panel, referee, system or other political unit or subdivision or other entity of any of the foregoing, whether domestic or foreign.
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“Authorized Signatory” means any duly authorized officer or other authorized Person of the Borrower, provided that the Agent shall have received a manually signed certificate of an officer of the Borrower bearing a manual specimen signature of such officer or other Person and such officer or other Person shall be reasonably satisfactory to the Agent.
“Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 8.04(d).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) 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, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank” means each of State Street, each lender named on the signature pages hereof, each Assignee which becomes a Bank pursuant to Section 9.06(c) hereof, and their respective successors.
“Base Rate” means, as of any day, a rate per annum equal to the higher of (a) the Base Rate Margin plus the Federal Funds Effective Rate as in effect on that day and (b) the Base Rate Margin plus Adjusted Term SOFR as in effect on that day.
“Base Rate Loans” means Loans bearing interest calculated by reference to the Base Rate.
“Base Rate Margin” means a rate per annum equal 0.85%.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 8.04(a).
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Agent for the applicable Benchmark Replacement Date:
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| (a) | the sum of (i) Daily Simple SOFR and (ii) 0.10% (10 basis points); or |
(b) the sum of: (i) the alternate benchmark rate that has been selected by the Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, 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 the Agent, in a commercially reasonable manner not inconsistent with similar determinations by the Agent in connection with other substantially similar credit facilities, giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) 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 such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means a date and time determined by the Agent, which date shall be no later than the earliest to occur of the following events with respect to the then- current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non -representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
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“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 8.04 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 8.04.
“Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.
“Borrower” has the meaning set forth in the preamble to this Agreement.
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“Borrowing Base” means, at the relevant time of reference thereto, an amount equal to the sum of the following items to the extent that they are classified as “assets” on the balance sheet of the Borrower in accordance with Generally Accepted Accounting Principles applicable to the Borrower:
| (i) | 90% of the aggregate Asset Value of all Tier 1 Investments; |
| (ii) | 80% of the aggregate Asset Value of all Tier 2 Investments; |
| (iii) | 70% of the aggregate Asset Value of all Tier 3 Investments; and |
| (iv) | 60% of the aggregate Asset Value of all Tier 4 Investments; |
provided, however, that
(1) if, but for this clause (1), in excess of 5% of the Borrowing Base would be attributable to a single issuer ( excluding (i) all GSEs that, as of the date of determination thereof, have outstanding any Asset backed Agency Security that would qualify as a Tier 1 Investment, and (ii) the Government of the United States), the amount of such excess shall not be included in the calculation of the Borrowing Base;
(2) if, but for this clause (2), in excess of 5% of the Borrowing Base would be attributable to Eligible Investments issued by an issuer domiciled in any Emerging Market Nation, the amount of such excess shall not be included in the calculation of the Borrowing Base;
(3) if, but for this clause (3), in excess of 20% of the Borrowing Base would be attributable to the aggregate value of (i) Eligible Foreign Government Securities issued by, and (ii) Eligible Senior Loans and Eligible Foreign Debt Securities issued by issuers domiciled in, Eligible OECD Member Nations (other than the United States), the amount of such excess shall not be included in the calculation of the Borrowing Base;
(4) if, but for this clause (4), in excess of 15% of the Borrowing Base would be attributable to the aggregate value of Eligible Investments in any single industry, the amount of such excess shall not be included in the calculation of the Borrowing Base;
(5) if, but for this clause (5), in excess of 10% of the Borrowing Base would be attributable to Eligible Senior Loans in the form of participation interests, the amount of such excess shall not be included in the calculation of the Borrowing Base;
(6) if, but for this clause (6), after giving effect to clause (5) immediately above in excess of 5% of the Borrowing Base would be attributable to Eligible Senior Loans in the form of participation interests from the same selling institution, the amount of such excess shall not be included in the calculation of the Borrowing Base;
(7) if, but for this clause (7), after giving effect to clauses (5) and (6) immediately above, in excess of 5% of the Borrowing Base would be attributable to Eligible Senior Loans which are part of a syndicated credit facility in which the sum of the aggregate revolving loan commitment amount plus the aggregate outstanding principal amount of all loans (other than revolving loans) under such facility on the origination date of such credit facility is less than $100,000,000, the amount of such excess shall not be included in the calculation of the Borrowing Base; and
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(8) if, but for this clause (8), any Excess Value would otherwise be included in the Borrowing Base, such Excess Value shall not be included in the calculation of the Borrowing Base.
“Borrowing Base Report” means a Borrowing Base Report for the Borrower signed by an Authorized Signatory of the Borrower and in substantially the form of Exhibit D attached hereto.
“Borrowing Date” means the Domestic Business Day or U.S. Government Securities Business Day, as the case may be, on which Loans are advanced hereunder as specified in a Notice of Borrowing delivered pursuant to Section 2.02(a) hereof.
“Broker dealer Asset” means, at any time, any asset of the Borrower (other than an Exchange Traded Asset) that, in the good faith determination of the Borrower, may (as a general matter) be fairly valued on a regular basis by reference to quotes from one or more broker dealers that are not Affiliates of the Borrower or the Borrower’s investment adviser.
“Calculation Date” has the meaning set forth in Section 5.01(c) hereof.
“Charter Documents” means, collectively, the Borrower’s Agreement and Declaration of Trust, its by laws and all other organizational or governing documents of the Borrower, in each case as amended, supplemented or otherwise modified from time to time.
“Commitment” means the agreement of each Bank, subject to the terms and conditions of this Agreement, to make Loans to the Borrower hereunder.
“Commitment Amount” means, with respect to each Bank, the amount set forth opposite the name of such Bank on Schedule 1 attached hereto, as such amount may be reduced or increased from time to time pursuant to the terms of this Agreement.
“Commitment Percentage” means, with respect to each Bank, the percentage set forth opposite the name of such Bank on Schedule 1 attached hereto (as the same may be amended pursuant to Section 9.06(h)) as such Bank’s percentage of the Aggregate Commitment Amount of all of the Banks.
“Confidential Material” has the meaning set forth in Section 9.09(a) hereof.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Domestic Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 8.06 and other technical, administrative or operational matters) that the Agent, in a commercially reasonable manner not inconsistent with similar determinations by the Agent in connection with other substantially similar credit facilities, decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
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“Control Affiliate” of a Person means (a) any other Person directly or indirectly owning, controlling, or holding with power to vote, greater than 50% of the outstanding voting securities of such Person, (b) any other Person greater than 50% of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such Person, or (c) any Person directly or indirectly controlling, controlled by, or under common control with, such other Person. For purposes of this defined term, “control” means the power to exercise a controlling influence over the management or policies of a company, and “controlling” and “controlled” shall have correlative meanings.
“Corresponding Loan Amount” has the meaning given to such term in Section 7.11.
“Covered Person” has the meaning set forth in Section 9.03(b) hereof.
“Custodian” means State Street Bank and Trust Company, in its capacity as custodian under the Custody Agreement.
“Custody Agreement” means that certain Amended and Restated Master Custodian Agreement, dated September 1, 2013, by and among each of the investment companies listed on Appendix A thereto and the Custodian (as the same may be further amended, restated, supplemented or otherwise modified from time to time).
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
“Debt” of any Person means at any date, without duplication, (a) all obligations of such Person for borrowed money or extensions of credit, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business and payable in accordance with customary practices, (d) all obligations of such Person as lessee which are or should be capitalized in accordance with Generally Accepted Accounting Principles, (e) all Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed or Guaranteed by such Person, (f) all obligations of such Person under Guarantees, (g) all obligations to reimburse the issuer in respect of letters of credit or under performance or surety bonds, and other similar obligations, (h) all obligations of such Person in respect of judgments, (i) all obligations of such Person in respect of banker’s acceptances and under reverse repurchase agreements, (j) all obligations of such Person in respect of Financial Contracts, and (k) all obligations that are Senior Securities Representing Indebtedness of such Person.
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“Default” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
“Delinquent Bank” has the meaning set forth in Section 7.10(a) hereof.
“Distressed Asset” means any asset if (a) the obligor thereof is subject to a bankruptcy, insolvency, liquidation or other similar action or proceeding, (b) the obligor thereof shall have failed to make any payment of principal or interest in respect of such asset when due (whether at scheduled maturity or any accelerated date of maturity or any other date fixed for payment or prepayment thereof or otherwise) beyond any period of grace provided with respect thereto, or (c) such asset is classified by the Borrower as “non-performing” pursuant to Generally Accepted Accounting Principles applicable to the Borrower.
“Dollars” or “$” means dollars in lawful currency of the United States of America.
“Domestic Business Day” means any day (other than a Saturday or Sunday) on which (a) commercial banks are open for the purpose of transacting business in Boston, Massachusetts and New York, New York and (b) the New York Stock Exchange is open.
“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, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date this Agreement becomes effective in accordance with Section 3.01 hereof.
“Electronic Platform” means an electronic system for the delivery of information (including, without limitation, documents), such as IntraLinks On Demand Workspaces™, that may or may not be provided or administered by the Agent or an Affiliate thereof.
“Eligible Commercial Paper” means a note (other than an Eligible U.S. Government Security or an Asset backed Agency Security) (a) of an issuer domiciled in, and having its principal place of business in, the United States, (b) having a maturity of 270 days or less, (c) rated (subject to Section 1.03 hereof) A-1 by S&P or P1 by Moody’s, and (d) denominated in an Eligible Currency.
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“Eligible Currency” means (a) Dollars, (b) Euros, and (c) Pounds Sterling.
“Eligible Domestic Debt Security” means a debt security (other than an Eligible U.S. Government Security, an Asset-backed Agency Security or Eligible Commercial Paper), issued by an issuer domiciled in, and having its principal place of business in, the United States, constituting a corporate bond obligation, and denominated in an Eligible Currency.
“Eligible Foreign Debt Security” means a debt security (other than an Eligible Foreign Government Security or Eligible Commercial Paper), issued by an issuer domiciled in, and having its principal place of business in, an Eligible OECD Member Nation, constituting a corporate bond obligation, and denominated in an Eligible Currency.
“Eligible Foreign Government Security” means any debt obligation, other than an Asset- backed Security, denominated in an Eligible Currency the timely repayment of the principal thereof, and interest thereon, is backed by the full faith and credit of a Government that is an Eligible OECD Member Nation (other than the United States).
“Eligible Investments” means securities or other investments (a) in which the Agent has, for the benefit of the Agent and the Banks, a first priority perfected security interest pursuant to the Security Documents, (b) that are free and clear of any Adverse Claim, (c) that are not the subject of a reverse repurchase agreement, dollar roll, securities lending transaction or otherwise segregated to satisfy any obligations with respect thereto, and (d) that are permitted to be purchased or held by the Borrower in accordance with the Prospectus and/or the Investment Policies and Restrictions.
“Eligible OECD Member Nation” means, as of any date, an OECD Member Nation which has a long term sovereign debt rating of Baa3 or higher by Moody’s or BBB- or higher by S&P.
“Eligible Other Senior Loan” means, as of any date, any Eligible Senior Loan that (a) is not an Eligible Par Senior Loan, and (b) the Asset Value of which is not less than 60.0% of the par value thereof.
“Eligible Par Senior Loan” means, as of any date, any Eligible Senior Loan, the Asset Value of which is not less than 90.0% of the par value thereof.
“Eligible Senior Loans” means corporate loan obligations (other than Eligible Domestic Debt Securities):
(a) of issuers domiciled in, and having their principal place of business in, an Eligible OECD Member Nation;
(b) with respect to which the principal thereof, and interest thereon, is payable in an Eligible Currency, and such interest is payable in cash (with no “PIK option”) no less frequently than quarterly;
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| (c) | in respect of which the Borrower’s interest is not a subparticipation; |
(d) which have a scheduled final maturity date no later than the tenth anniversary after the related origination date;
(e) which are part of a senior credit facility, with respect to which such debt security is not by its terms subordinated (pursuant to contractual provisions) to the prior payment of any other liabilities or any equity interests of the related obligor;
(f) which are part of a syndicated credit facility in which the sum of the aggregate revolving loan commitment amount plus the aggregate outstanding principal amount of all loans (other than revolving loans) under such facility on the origination date of such credit facility is at least equal to $50,000,000;
(g) which relate to loan documents in which the Borrower’s interest (direct or participating) in the aggregate outstanding principal amount of all loans thereunder is no greater than 33 1/3%;
(h) in respect of which the related loan documents (but not the balance of the credit file) are not subject to any confidentiality arrangement which would preclude the Agent from reviewing such loan documents;
(i) in which the Borrower’s interest in all collateral security therefor and principal and interest payments thereunder is no less than pro rata and pari passu with all other lenders in the particular tranche in which the Borrower holds an interest or participates, as the case may be;
(j) in respect of which (1) neither the related administrative agent nor any controlling affiliate thereof (i) is subject to any bankruptcy or other insolvency proceeding, (ii) has stated in writing that it will not perform its obligations, if any, under the relevant loan documents, or (iii) is in default of its obligation to provide credit or other funding under such loan documents, and (2) the credit rating of the related administrative agent or its controlling affiliate is no less than “A-” from S&P or “A3” from Moody’s;
(k) in respect of which, if the Borrower’s interest therein is that of a participant, the credit rating of the related selling institution is no less than “A-” from S&P and “A3” from Moody’s;
(l) in respect of which the related loan documents do not allow, without the consent of the Borrower, (i) any reduction of the principal amount of any loan thereunder owing to the Borrower, or any reduction of the rate of any interest, or any fees, payable under such loan documents, on account of such loans of the Borrower, (ii) the postponement of the final maturity date, or the date of any payment, for any loan owing to the Borrower thereunder or any interest or any fees payable under such loan documents to the Borrower, or any reduction of the amount of, or waiver or excuse of, any payment owing to the Borrower thereunder, (iii) changing any provision of such loan documents in a manner that would alter the pro rata sharing of payments required thereby, (iv) changing any provision thereof specifying the number or percentage of lenders thereunder required to waive, amend, supplement or otherwise modify any rights under such loan documents, or (v) releasing all or substantially all of the collateral, if any, for the obligations under such loan documents;
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| (m) | which are priced daily by Thomson Reuters LPC; and |
| (n) | which are not Distressed Assets. |
“Eligible U.S. Government Security” means any debt obligation the timely repayment of the principal thereof, and interest thereon, is backed by the full faith and credit of the Government of the United States.
“Emerging Market Nation” means, as of any date, an Eligible OECD Member Nation that is not listed in the MSCI Developed Market Country Index.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.
“ERISA Group” means, with respect to the Borrower, the Borrower and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code.
“Erroneous Payment” has the meaning assigned to such term in Section 7.11.
“Erroneous Payment Return Deficiency” has the meaning assigned to such term in Section 7.11.
“Erroneous Payment Subrogation Rights” has the meaning assigned to such term in Section 7.11.
“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.
“Euros” refers to the single currency of participating member states of the European Union.
“Events of Default” has the meaning set forth in Section 6.01 hereof.
“Excess Value” means, with respect to any Quotable Asset of the Borrower, that portion of the Asset Value attributed by the Borrower to such asset that exceeds 103% of: (a) in the case of an Exchange Traded Asset, the closing price thereof on the relevant exchange, (b) in the case of a Broker dealer Asset, the bid price (or average bid price) therefor, or (c) in the case of a Pricing Service Asset, the market price therefor determined by the relevant pricing service.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC, or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference to any successor statutory or regulatory provision.
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“Exchange Traded Asset” means, at any time, any asset of the Borrower that, in the good faith determination of the Borrower, may (as a general matter) be fairly valued on a regular basis by reference to the closing price thereof on an exchange.
“Existing Credit Agreement” means, the Amended and Restated Revolving Credit and Security Agreement, dated as of December 14, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), among the Borrower, CHARTA, LLC, CAFCO, LLC, CIESCO, LLC, and CRC Funding, LLC, as lenders, Citibank, N.A., as secondary lender, and Citibank, N.A., as agent.
“Failure” has the meaning set forth in Section 7.10(b).
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Effective Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof (provided such regulations or official interpretations are substantively comparable and not materially more onerous to comply with) and any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.
“Fed Funds Business Day” means any day upon which overnight federal funds transactions are conducted.
“Federal Funds Effective Rate” means, for any day, the rate per annum calculated by the FRBNY, based on the prior day's overnight federal funds transactions (as determined in such manner as the FRBNY shall set forth on its public website from time to time), as the federal funds effective rate (which rate is, in general, published by the FRBNY on such day for the prior FRBNY Business Day), provided that if such day is not a Fed Funds Business Day, then the Federal Funds Effective Rate shall be such rate as in effect on the Fed Funds Business Day immediately preceding such day, provided further that if the Federal Funds Effective Rate as so determined for any day would be less than the Floor, such rate for such day shall be deemed to be the Floor for all purposes of this Agreement.
“Financial Contract Liability” means, at any time, the net amount of the liability, if any, that a Person has under each Financial Contract to which such Person is a party, in each case determined on a mark-to-market basis in accordance with Generally Accepted Accounting Principles.
“Financial Contracts” means option contracts, options on futures contracts, futures contracts, forward contracts, options on foreign currencies, foreign currency contracts, repurchase agreements, reverse repurchase agreements, mortgage rolls, credit linked notes, indexed securities, collateralized debt obligations, firm and standby commitment agreements, securities lending agreements, when-issued contracts and securities, swap, swaption, floor, cap, or collar agreements, other similar arrangements and other obligations that would be, but for the segregation of assets thereof, Senior Securities.
“Floor” means a rate of interest equal to 0.0%.
“Foreign Bank” means any Bank that is not a U.S. Person.
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“FRBNY” means the Federal Reserve Bank of New York, or any successor thereto that publishes the Federal Funds Effective Rate.
“FRBNY Business Day” means each business day that is not included in the FRBNY’s holiday schedule.
“Generally Accepted Accounting Principles” has the meaning set forth in Section 1.02 hereof.
“Government” means, with respect to any sovereignty, the government or any agency or instrumentality thereof.
“Governmental Authorizations” means all franchises, permits, licenses, approvals, consents and other authorizations of all Authorities.
“Governmental Filings” means all filings, including franchise and similar tax filings, and the payment of all fees, assessments, interests and penalties associated with such filing, with all Authorities.
“GSE” means the Government National Mortgage Association, the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation.
“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness(whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Indebtedness” of any Person means at any date, without duplication, (a) all Debt of such Person, and (b) all Senior Securities issued by such Person.
“Interest Period” means as to any applicable Loan, the period commencing on the date of such Loan and ending on the numerically corresponding day in the calendar month that is one month thereafter (subject to the availability thereof), as specified in the applicable Notice of Borrowing; provided that (i) if any Interest Period would end on a day other than a Domestic Business Day, such Interest Period shall be extended to the next succeeding Domestic Business Day unless such next succeeding Domestic Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Domestic Business Day, (ii) any Interest Period that commences on the last Domestic Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Domestic Business Day of the last calendar month of such Interest Period, (iii) no Interest Period shall extend beyond the Termination Date and (iv) no tenor that has been removed from this definition pursuant to Section 8.04(d) shall be available for specification in such Notice of Borrowing. For purposes hereof, the date of a Loan initially shall be the date on which such Loan is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan.
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“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.
“Investment Adviser” means Eaton Vance Management, a business trust organized under the laws of the Commonwealth of Massachusetts.
“Investment Company Act” means the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC, or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to include a reference to any successor statutory or regulatory provision.
“Investment Policies and Restrictions” means, with respect to the Borrower, the material provisions of the Prospectus and other documents dealing with the Borrower’s investment objectives, investment policies and strategies, and investment restrictions, as such objectives, policies, strategies and restrictions may be amended, supplemented or otherwise modified in accordance with Applicable Law, including without limitation, the Securities Act and the Investment Company Act.
“Law” means any action, code, consent decree, constitution, decree, directive, enactment, finding, guideline, law, injunction, interpretation, judgment, order, ordinance, policy statement, proclamation, promulgation, regulation, requirement, rule, rule of law, rule of public policy, settlement agreement, statute, or writ, of any Authority, or any particular section, part or provision thereof.
“Lending Office” means, initially, the office of each Bank designated as such on Schedule 1 attached hereto; thereafter such other office of such Bank, if any, located in the United States that shall be making or maintaining Loans.
“Liabilities” has the meaning set forth in Section 7.05.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest (statutory or other) or encumbrance of any kind in respect of such asset, or any preference, priority or other security or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement or any financing lease having substantially the same economic effect as any of the foregoing) with respect to such asset, including any agreement (other than this Agreement) preventing a Person from encumbering such asset.
“Loans” means loans made or to be made to the Borrower by the Banks pursuant to Section 2.01 hereof.
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“Loan Documents” means, collectively, this Agreement, the Notes, the Security Documents, the fee agreement (if any) described in Section 2.07(b) hereof and any and all other documents and instruments required to be delivered pursuant to this Agreement, in each case as amended, restated, supplemented or otherwise modified from time to time.
“Margin Stock” has the meaning assigned to such term in Regulation U.
“Material Adverse Effect” means (a) a material adverse effect on the ability of the Borrower to fully perform its obligations under this Agreement or any of the other Loan Documents, (b) a material adverse effect on the Agent’s right, title and interest, on behalf of itself and the Banks, in the collateral pledged to it pursuant to the Security Documents, or on the rights and remedies of the Agent or any Bank under this Agreement or under any of the other Loan Documents, (c) a material adverse effect on the validity or enforceability of this Agreement or any of the other Loan Documents, or (d) a material adverse effect on the business, financial position, condition, operations, assets or properties of the Borrower or the Investment Adviser.
“Maximum Amount” means, as at any date of determination with respect to any Person, an amount equal to the least of:
(a) the maximum amount of Debt that such Person would be permitted to incur pursuant to Applicable Law, including the Investment Company Act,
(b) the maximum amount of Debt that such Person would be permitted to incur pursuant to the limitations on borrowings in the Borrower’s Prospectus and the Investment Policies and Restrictions,
(c) in the event that such Person shall have entered into any agreement(s) with any Authority limiting the amount of Debt that such Person may create, incur, assume or suffer to exist, the maximum amount of Debt that such Person would be permitted to create, incur, assume or suffer to exist pursuant to such agreements, and
(d) the maximum amount of Debt that such Person would be permitted to incur without violating Section 5.18 hereof.
in each case, as in effect at such date of determination.
“Moody’s” means Moody’s Investors Services, Inc., or any successor acceptable to all of the Banks and performing substantially the same function.
“Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five year period.
“New Loan Borrowing Base Report” has the meaning set forth in Section 2.02(a) hereof.
“Note(s)” has the meaning set forth in Section 2.04(b) hereof.
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“Notice” has the meaning set forth in Section 9.01(a) hereof.
“Notice of Borrowing” has the meaning set forth in Section 2.02(a) hereof.
“Notice of Conversion” has the meaning set forth in Section 2.02(b) hereof.
“Obligations” means all indebtedness, obligations and liabilities of the Borrower to the Banks and the Agent, existing on the date of this Agreement or arising thereafter, direct or indirect, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising or incurred under this Agreement or any of the other Loan Documents or in respect of any of the Loans to the Borrower or any of the Notes or other instruments at any time evidencing any thereof.
“OECD Member Nation” means a member nation of the Organization for Economic Co- operation and Development.
“Participant” has the meaning set forth in Section 9.06(b) hereof.
“Patriot Act” has the meaning set forth in Section 9.10 hereof.
“Payment Recipient” has the meaning assigned to such term in Section 7.11.
“Periodic Term SOFR Determination Date” has the meaning specified in the definition of Term SOFR.
“Permitted Tender Offer” means a tender offer that the Borrower is obligated to make due to certain performance metrics of the Borrower over a period of time and which is made by the Borrower in accordance with Applicable Law to purchase, redeem, retire, acquire, cancel or terminate common shares of the Borrower in an aggregate amount of up to 10% of the Borrower’s then-outstanding common shares; provided that there shall be no more than one Permitted Tender Offer in each of the calendar years 2023 and 2024.
“Permitted Tender Offer Reporting Period” means, with respect to any Permitted Tender Offer, the period beginning on the first date that such Permitted Tender Offer is publicly announced, whether in a communication with shareholders or otherwise, and ending on the last Domestic Business Day of the second full calendar week following the date that all shares tendered and accepted in connection with such Permitted Tender Offer have been redeemed, retired, acquired, cancelled or terminated.
“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust (or series thereof) or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (b) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group.
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“Pounds Sterling” refers to the lawful currency of the United Kingdom.
“Preferred Adjusted Net Assets” means, as at any date of determination, an amount equal to (a) the Asset Value of the Total Assets minus Total Liabilities that are not Senior Securities Representing Indebtedness. For purposes of calculating the Preferred Adjusted Net Assets, the amount of any liability included in Total Liabilities shall be equal to the greater of (i) the outstanding amount of such liability and (ii) the fair market value of all assets pledged to secure such liability.
“Preferred Asset Coverage” means, at any time of determination, the percentage equal to Preferred Adjusted Net Assets divided by (b) all (x) Senior Securities of the Borrower plus, without duplication, (y) Senior Securities Representing Indebtedness.
“Preferred Asset Coverage Default” shall exist on the first Domestic Business Day that the Preferred Asset Coverage is less than 200% as of the close of business on such Domestic Business Day, and such condition has continued for a period of at least five (5) Domestic Business Days.
“Preferred Shares” means the Borrower’s (x) “Series A Auction Rate Preferred Shares” with a liquidation preference of $25,000 per share and consisting of 752 shares outstanding on the Effective Date and (y) “Series B Auction Rate Preferred Shares” with a liquidation preference of $25,000 per share and consisting of 752 shares outstanding on the Effective Date.
“Pricing Procedures” means the Borrower’s pricing procedures referred to in Section 3.01(f)(vii), as amended, supplemented or otherwise modified from time to time.
“Pricing Service Asset” means, at any time, any asset of the Borrower (other than an Exchange Traded Asset or a Broker dealer Asset) that, in the good faith determination of the Borrower, may (as a general matter) be fairly valued on a regular basis by reference to the market price therefor determined by one or more pricing services that are not Affiliates of the Borrower or the Borrower’s investment adviser.
“Private Authorizations” means all franchises, permits, licenses, approvals, consents and other authorizations of all Persons (other than any Authority) including, without limitation, those of shareholders and creditors and those with respect to trademarks, service marks, trade names, copyrights, computer software programs, technical and other know-how.
“Prospectus” means, with respect to the Borrower, the prospectus dated August 25, 2022, and filed with the SEC as part of the Borrower’s registration statement on Form N-2, as amended (or any successor SEC form), and shall include, without limitation, the related statement of additional information included in such registration statement, and all amendments, restatements, supplements and other modifications thereto as of the Effective Date and as the same may be further amended, restated, supplemented or otherwise modified in accordance with Applicable Law, including without limitation, the Securities Act and the Investment Company Act and in accordance with the terms of this Agreement.
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“Quotable Asset” means, at any time, any asset of the Borrower that is an Exchange Traded Asset, a Broker dealer Asset or a Pricing Service Asset.
“Quotable Value” means, with respect to any Quotable Asset of the Borrower: (a) in the case of an Exchange Traded Asset, the closing price thereof on the relevant exchange, (b) in the case of a Broker dealer Asset, the bid price (or average bid price) therefor, or (c) in the case of a Pricing Service Asset, the market price therefor determined by the relevant pricing service.
“Register” has the meaning set forth in Section 9.06(g) hereof.
“Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System, as in effect from time to time, and all official rulings and interpretations thereunder and thereof.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time, and all official rulings and interpretations thereunder and thereof.
“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System, as in effect from time to time, and all official rulings and interpretations thereunder and thereof.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Replacement Bank” has the meaning set forth in Section 8.05 hereof.
“Representatives” has the meaning set forth in Section 9.09(a) hereof.
“Required Banks” means, at any time, Banks holding at least a majority of the aggregate unpaid principal amount of the Loans at such time or, if no Loans are then outstanding, having at least a majority of the aggregate Commitment Amounts then in effect; provided that at any time that there are two or fewer Banks, “Required Banks” means all of the Banks, provided further that for purposes of determining Required Banks, each Delinquent Bank (including, without limitation, its Commitment Amount and Loans) shall be disregarded for so long as such Bank remains a Delinquent Bank.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Payment” means (a) any dividend or other distribution by the Borrower (whether in cash, securities or other property) with respect to any shares, units or other equity interests issued by the Borrower, and (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, by the Borrower on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares, units or other equity interests.
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“Revolving Credit Period” means the period from and including the Effective Date to but excluding the Termination Date.
“S&P” means Standard & Poor’s, a division of The McGraw Hill Companies, Inc., or any successor acceptable to all the Banks and performing substantially the same function.
“Sanctions” has the meaning set forth in Section 4.16 hereof.
“SEC” means the Securities and Exchange Commission or any other governmental authority of the United States of America at the time administering the Securities Act, the Investment Company Act or the Exchange Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC, or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference to any successor statutory or regulatory provision.
“Security Agreement” means that certain Security Agreement, dated as of May 4, 2023, among the Borrower, the Custodian and the Agent, on behalf of itself and the Banks, as amended, restated, supplemented or otherwise modified from time to time.
“Security Documents” means, collectively, the Security Agreement and all other instruments and documents, including, without limitation, Uniform Commercial Code financing statements, required to be executed or delivered pursuant to the Security Agreement or under Applicable Law.
“Senior Security” has the meaning set forth in the first sentence of Section 18(g) of the Investment Company Act.
“Senior Securities Representing Indebtedness” has the meaning set forth in the first sentence of Section 18(g) of the Investment Company Act.
“Shareholders” has the meaning set forth in Section 9.14 hereof.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Loan” means a Loan bearing interest calculated by reference to Adjusted Term SOFR.
“Specified Materials” means, collectively, all materials or information provided by or on behalf of the Borrower, as well as documents and other written materials relating to the Borrower or any of its Subsidiaries or Affiliates or any other materials or matters relating to the Loan Documents (including, without limitation, any amendment, restatement, supplement or other modification thereto).
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“State Street” means State Street Bank and Trust Company in its capacity as a Bank hereunder.
“Subsidiary” means, with respect to a Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
“Term SOFR” means:
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Boston time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day; and
(b) for any calculation with respect to any Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Boston time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day.
“Term SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
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“Term SOFR Margin” means 0.85%.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means (a) May 2, 2024 or (b) such earlier date on which the Commitments terminate or are terminated pursuant to the terms hereof.
“Threshold Amount” means, as of any date, the lesser of (i) 2.5% of the aggregate net asset value of the Borrower, and (ii) $5,000,000 (or the equivalent amount thereof in any other currency).
“Tier 1 Investments” means Eligible Investments that are:
(a) Asset backed Agency Securities (i) rated (subject to Section 1.03 hereof) Aa2 or higher by Moody’s or AA or higher by S&P, or (ii) the issuer of which has a senior unsecured, unenhanced long-term debt rating (subject to Section 1.03 hereof) of Aa2 or higher by Moody’s or AA or higher by S&P, or
| (b) | Eligible U.S. Government Securities or Eligible Commercial Paper. |
“Tier 2 Investments” means Eligible Investments (other than Tier 1 Investments) that are:
(a) Eligible Domestic Debt Securities, Eligible Foreign Debt Securities, or Eligible Foreign Government Securities, in each case rated (subject to Section 1.03 hereof) BBB- or better by S&P or Baa3 or better by Moody’s, or
(b) Asset backed Agency Securities (i) rated (subject to Section 1.03 hereof) BBB- or higher by S&P or Baa3 or higher by Moody’s, or (ii) the issuer of which has a senior unsecured, unenhanced long-term debt rating (subject to Section 1.03 hereof) of BBB- or higher by S&P or Baa3 or higher by Moody’s.
“Tier 3 Investments” means Eligible Investments (other than Tier 1 Investments and Tier 2 Investments) that are:
(a) Eligible Domestic Debt Securities, or Eligible Foreign Debt Securities, in each case rated (subject to Section 1.03 hereof) BB- or better by S&P or Ba3 or better by Moody’s, or
| (b) | Eligible Par Senior Loans. |
“Tier 4 Investments” means Eligible Investments (other than Tier 1 Investments, Tier 2 Investments and Tier 3 Investments) that are:
(a) Eligible Domestic Debt Securities, or Eligible Foreign Debt Securities, in each case rated (subject to Section 1.03 hereof) B- or better by S&P or B3 or better by Moody’s, or
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| (b) | Eligible Other Senior Loans. |
“Total Assets” means, at any date, all assets of the Borrower which in accordance with Generally Accepted Accounting Principles applicable to the Borrower would be classified as assets upon a balance sheet of the Borrower prepared as of such date, valued in accordance with the Pricing Procedures, provided, however, that Total Assets shall not include (a) equipment, (b) securities owned by the Borrower which are in default (except to the extent that the Borrower is required or permitted to attribute a value thereto pursuant to the Investment Company Act, the Prospectus and the Investment Policies and Restrictions) or determined to be worthless pursuant to any policy of the Borrower’s board of directors, and (c) deferred organizational and offering expenses.
“Total Liabilities” means, at any date, the sum of all liabilities of the Borrower which in accordance with Generally Accepted Accounting Principles applicable to the Borrower would be classified as liabilities upon a balance sheet of the Borrower prepared as of such date, plus, without duplication, the aggregate amount of the Borrower’s Debt and Financial Contract Liability, provided, however, that Total Liabilities shall not include any liquidation preference of any preferred security issued by the Borrower.
“Trustees” has the meaning set forth in Section 9.14 hereof.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday,
(b) a Sunday, or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“Valuation Report” means a report by the Borrower, as of the close of business on a particular date, (a) listing each security and other investment of the Borrower and the value thereof and (b) with respect to each such security and other investment, specifying whether such security or other investment constitutes a Tier 1 Investment, a Tier 2 Investment, a Tier 3 Investment, or a Tier 4 Investment and the class and rating of such security within the relevant Tier (e.g. an Asset-backed Agency Security, the issuer of which has a senior unsecured, unenhanced long term debt rating (subject to Section 1.03 hereof) of AA or higher by S&P or Aa2 or higher by Moody’s, an Eligible Foreign Government Security rated (subject to Section 1.03 hereof) BBB- or better by S&P and Baa3 or better by Moody’s etc.).
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“Value” has the meaning assigned to such term in Section 2(a)(41) of the Investment Company Act.
“Write-Down and Conversion Powers” means (a) 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, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.02 Accounting Terms and Determination. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made and all financial statements required to be delivered hereunder shall be prepared in accordance with Generally Accepted Accounting Principles as in effect from time to time in the United States of America (“Generally Accepted Accounting Principles”), applied on a basis consistent (except for changes concurred in by the Borrower’s independent public accountants) with the most recent audited financial statements of the Borrower delivered to the Banks hereunder.
Section 1.03 Split Ratings. In each case in which any provision of this Agreement refers to credit ratings by S&P and Moody’s (or by S&P or Moody’s) and provides that such provision is subject to this Section 1.03, such provision shall be construed to mean that, in the event there is a split in the ratings by one or more ratings categories (e.g., some thing or some Person is rated BBB- by S&P and Ba3 by Moody’s), the higher rating shall be ignored.
Section 1.04 Rates. The Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Bank or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
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ARTICLE II
THE CREDIT
Section 2.01 Commitments to Lend. Subject to the terms and conditions set forth in this Agreement, each of the Banks severally agrees to make Loans to the Borrower, from time to time during the Revolving Credit Period, upon notice by the Borrower to the Agent given in accordance with Section 2.02(a) hereof, up to a maximum aggregate principal amount outstanding at any one time equal to such Bank’s Commitment Amount, provided that the aggregate principal amount of all Loans outstanding (i) shall not exceed at any time the lesser of the Borrowing Base and (b) the Aggregate Commitment Amount; and (ii) shall not cause the Borrower to have an aggregate amount of Debt outstanding that is in excess of the Maximum Amount, in each case in effect at such time. Each borrowing under this Section shall be in an aggregate principal amount equal to an Approved Borrowing Amount, and shall be made from the several Banks pro rata in accordance with each Bank’s Commitment Percentage. Each Loan shall mature and become due and payable as provided in Section 2.05 hereof.
Section 2.02 Notice of Borrowings. (a)The Borrower shall give the Agent (X) either a notice substantially in the form of Exhibit B attached hereto (a “Notice of Borrowing”) not later than Noon (Boston time), or (b) telephonic notice not later than Noon (Boston time) confirmed in writing substantially in the form of Exhibit B attached hereto not later than 1:00 p.m. (Boston time), in either case (i) on the Domestic Business Day of each proposed borrowing of a Base Rate Loan and (ii) on the third U.S. Government Securities Business Day before each proposed borrowing of a SOFR Loan, in each case specifying (1) the date of such borrowing, which shall be a Domestic Business Day in the case of a Base Rate Loan or a U.S. Government Securities Business Day in the case of a SOFR Loan, (2) whether such borrowing shall be of a Base Rate Loan or a SOFR Loan, (3) the aggregate principal amount of such borrowing, and (4) in the case of a SOFR Loan, the Interest Period therefor (which shall comply with Section 2.02(c) hereof), and (Y) a duly completed Borrowing Base Report not later than 2:00 p.m. (Boston time) on the date of the proposed borrowing of the requested Loan, prepared as of the close of business on the Domestic Business Day immediately preceding such date (a “New Loan Borrowing Base Report”), provided that if the Borrower has delivered a Borrowing Base Report pursuant to the terms of Section 5.01(c) with respect to a Calculation Date falling in the immediately preceding calendar month, and the date for delivery of a new Borrowing Base Report in connection with the next succeeding Calculation Date (as defined in Section 5.01(c)) has not yet occurred and will not occur prior to the date of the proposed borrowing then no New Loan Borrowing Base Report shall be required in connection with such proposed borrowing.
(b) The Borrower may elect from time to time to convert any outstanding Base Rate Loan or SOFR Loan to a Loan of the other type, or to roll over any outstanding SOFR Loan upon the expiration of an Interest Period with respect thereto, by giving a notice to the Agent substantially in the form of Exhibit C attached hereto (a “Notice of Conversion”) (or telephonic notice confirmed in a writing substantially in the form of Exhibit C attached hereto), provided that (i) with respect to any conversion into or rollover of a SOFR Loan, the Notice of Conversion shall be given within the time period for the giving of a Notice of Borrowing for a SOFR Loan as set forth in Section 2.02(a), (ii) no Loan may be converted into or rolled over as a SOFR Loan (1) except in compliance with Section 2.02(c) hereof, or (2) if an Event of Default has occurred and is continuing (in which case such Loan shall automatically become a Base Rate Loan on the last day of the first Interest Period relating thereto ending during the continuance of any Event of Default), (iii) a SOFR Loan may be converted into a Base Rate Loan or rolled over as a SOFR Loan only on the last day of the Interest Period applicable thereto, and (iv) if the Borrower fails to give a timely Notice of Conversion for a SOFR Loan, the Borrower shall be deemed to have elected to continue such Loan as a SOFR Loan having a one month Interest Period from the last day of the Interest Period applicable thereto. Conversions to and from SOFR Loans shall be in such amounts and pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of all SOFR Loans having the same Interest Period shall not be less than the Approved Borrowing Amount.
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(c) The Borrower may not elect an Interest Period for a new SOFR Loan, or continue or convert a Loan as a SOFR Loan, if immediately after giving effect thereto there would be more than six different Interest Periods.
Section 2.03 Notice to Banks; Funding of Loans. (a) Upon receipt of a Notice of Borrowing or an oral request for a borrowing in accordance with Section 2.02(a), the Agent shall promptly notify each Bank of the contents thereof and of such Bank’s ratable share (based on Commitment Percentages) of such borrowing. Such Notice of Borrowing or oral request shall not thereafter be revocable by the Borrower and shall obligate the Borrower to accept the Loans requested from the Banks on the date of such borrowing.
(b) Not later than 2:00 p.m. (Boston time) on the Borrowing Date of each borrowing, each Bank shall make available its share of such borrowing, in Federal or other funds immediately available in Boston, to the Agent at its address referred to in Section 9.01. Unless the Agent determines that any applicable condition specified in Article III has not been satisfied or waived, the Agent will make its share of such borrowing and the funds so received from the other Banks available to the Borrower at the Agent’s aforesaid address, on the date of the borrowing. The failure or refusal of any Bank to make available to the Agent as provided herein its share of any borrowing shall not relieve any other Bank from its several obligations hereunder.
(c) If any Bank makes a new Loan hereunder on a day on which the Borrower is to repay the principal amount of an outstanding Loan to such Bank, the Bank shall apply the proceeds of its new Loan to make such repayment and only an amount equal to the difference (if any) between the amount being borrowed and the amount being repaid shall be made available by the Agent as provided in clause (a) or remitted by the Borrower to the Agent for the account of such Bank as provided in Section 2.09 hereof, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior to any date of a borrowing that such Bank will not make available to the Agent such Bank’s share of such borrowing, the Agent may assume that such Bank has made such share available to the Agent on such date in accordance with clause (b) of this Section and the Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Bank shall not have so made such share available to the Agent, such Bank and the Borrower severally agree to repay to the Agent, within three days after demand by the Agent, such amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Agent, at (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable thereto pursuant to Section 2.06 hereof and (ii) in the case of such Bank, the Federal Funds Effective Rate. If such Bank shall repay to the Agent such amount, such amount so repaid shall constitute such Bank’s Loan included in such borrowing for purposes of this Agreement. The provisions of this Section 2.03(d) shall not relieve any such Bank from any liability to the Borrower.
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Section 2.04 Loan Accounts; Notes; Records. (a) The Loans made by each Bank to the Borrower shall be evidenced by one or more loan accounts or records maintained by such Bank in the ordinary course of business. The Borrower irrevocably authorizes each Bank to make or cause to be made, at or about the date of each Loan or at the time of receipt of any payment of principal of each Loan, an appropriate notation on its loan accounts or records, including computer records, reflecting the making of such Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Loans set forth in any such loan accounts or records, including any computer records, maintained by a Bank with respect to the Loans made by it shall be prima facie evidence of the principal amount thereof owing and unpaid to the Bank, but the failure to record, or any error in so recording, any such amount on any such loan account or record shall not limit or otherwise affect the obligation of the Borrower hereunder or under the other Loan Documents to make payments of principal of and interest on the Loans when due.
(b) The Borrower hereby agrees that if, in the opinion of any Bank, a promissory note or other evidence of debt is required, appropriate or desirable to reflect or enforce the obligations of the Borrower resulting from the Loans made, or to be made, by such Bank, then, upon request of such Bank, the Borrower shall promptly execute and deliver to such Bank, a promissory note (each, a “Note” and, collectively, the “Notes”) substantially in the form of Exhibit A attached hereto, payable to such Bank in an amount equal to such Bank’s Commitment Amount or, if less, the aggregate unpaid principal amount of such Bank’s Loans, plus interest thereon as provided below, provided, that as a condition to issuing any Note in replacement of a previously issued Note that has been lost, the Borrower may require an indemnity with respect to lost instruments from such Bank, in form and substance satisfactory to the Borrower and its counsel.
(c) The Agent’s records with respect to the Loans, the interest rates applicable thereto, each payment by the Borrower of principal and interest on the Loans and fees, expenses and any other amounts due and payable in connection with this Agreement and the other Loan Documents shall be prima facie evidence of the amount of the Loans and the amount of principal and interest paid by the Borrower in respect of the Loans and as to the other information relating to the Loans and amounts paid and payable by the Borrower hereunder and under the other Loan Documents.
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Section 2.05 Mandatory Payments; Optional Prepayments. (a) Each Loan shall mature, and the principal amount thereof shall be due and payable, on the Termination Date. The Borrower promises to pay on the Termination Date, and there shall become absolutely due and payable on the Termination Date, all of the Loans outstanding on such date, together with all accrued and unpaid interest thereon and other amounts outstanding hereunder.
(b) If at any time the aggregate principal amount of Loans outstanding exceeds the Borrowing Base, the Borrower shall within three (3) Domestic Business Days (i) prepay such principal amount of one or more Loans (together with accrued interest thereon and, in the case of SOFR Loans, the amount, if any, payable pursuant to Section 8.06), (ii) take such other action, or (iii) both, as may be necessary so that the aggregate outstanding principal balance of the Loans no longer exceeds the Borrowing Base.
(c) If at any time the Borrower shall be in default of its obligations under Sections 5.18 or 5.19, the Borrower shall immediately (i) prepay such principal amount of one or more Loans (together with accrued interest thereon and, in the case of SOFR Loans, the amount, if any, payable pursuant to Section 8.06) and, thereafter, such principal amount of other Debt, and (ii) take such other action as may be necessary so that immediately after giving effect to such prepayment and such other actions no such default would exist.
(d) If at any time the aggregate principal amount of Loans outstanding to the Borrower exceeds the Aggregate Commitment Amount, including as a result of the occurrence of any of the events described in Section 2.08(b) or for any other reason, the Borrower shall immediately prepay such principal amount of one or more Loans (together with accrued interest thereon and, in the case of SOFR Loans, the amount, if any, payable pursuant to Section 8.06) as may be necessary to eliminate such excess.
(e) The Borrower may, with notice to the Agent no later than 11:30 a.m. (Boston time) on the Domestic Business Day of such payment in the case of Base Rate Loans and upon at least three U.S. Government Securities Business Days’ notice in the case of such payment of SOFR Loans (in either case, which notice shall not thereafter be revocable by the Borrower), prepay any Loans in whole at any time, or from time to time in part in an aggregate principal amount not less than $1,000,000 or in larger integral multiples of $1,000,000, by paying the principal amount to be prepaid (together with accrued interest thereon to the date of prepayment and, in the case of SOFR Loans, the amount, if any, payable pursuant to Section 8.06). Each such optional prepayment shall be applied to prepay ratably the Loans of the several Banks included in such borrowing.
(f) If the Borrower prepays all or any portion of the principal amount of any SOFR Loan on any day other than the last day of the Interest Period relating thereto, such prepayment shall include the amounts, if any, payable pursuant to Section 8.06.
(g) Upon receipt of a notice of prepayment pursuant to clause (e), the Agent shall promptly notify each Bank of the contents thereof and of such Bank’s ratable share of such prepayment.
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(h) Subject to the satisfaction of the conditions set forth in Section 3.02, Loans prepaid prior to the Termination Date may be reborrowed prior to the Termination Date.
Section 2.06 Interest Rates.
(a) Subject to Section 2.06(c), each Base Rate Loan shall bear interest on the outstanding principal amount thereof, for the period commencing with the date such Loan is made up to but not including the date such Loan is repaid in full, at a rate per annum equal to the Base Rate as in effect from time to time. Accrued and unpaid interest on each Base Rate Loan shall be payable in arrears on (i) with respect to interest accrued during a calendar month, the fifteenth day of the immediately succeeding calendar month, and (ii) with respect to all accrued and unpaid interest, the Termination Date.
(b) Subject to Section 2.06(c) and Article VIII, each SOFR Loan shall bear interest on the outstanding principal amount thereof, for the period commencing with the date such SOFR Loan is made or continued through but excluding the last day of the Interest Period applicable thereto, at a rate per annum equal to the sum of the Term SOFR Margin plus the applicable Adjusted Term SOFR. Accrued and unpaid interest on each SOFR Loan shall be payable in arrears (i) with respect to interest accrued during a calendar month, on the fifteenth day of the immediately succeeding calendar month, and (ii) with respect to all accrued and unpaid interest, on the Termination Date.
(c) All overdue amounts payable under the Loan Documents (including, without limitation, any overdue principal of the Loans (whether at stated maturity, by acceleration or otherwise), any overdue interest on the Loans and any overdue fees) shall bear interest, payable on demand, for each day from and including the date payment thereof was due to but not including the date of actual payment, at a rate per annum equal to the sum of two percent (2%) above the Base Rate until such amount shall be paid in full (after as well as before judgment). Notwithstanding anything to the contrary in this Section 2.06, upon either (A) notice by the Agent to the Borrower during the continuance of an Event of Default, or (B) the occurrence of an Event of Default under Section 6.01(g) or (h), the outstanding principal balance of the Loans shall bear interest at a rate per annum equal to the greater of (i) two percent (2%) above the rate of interest otherwise applicable to such Loans pursuant to this Section 2.06 or (ii) two percent (2%) above the Base Rate.
(d) The Agent shall determine the interest rate applicable to the Loans hereunder and its determination thereof shall be conclusive and binding for all purposes in the absence of manifest error.
Section 2.07 Fees.
(a) During the Revolving Credit Period, the Borrower shall pay to the Agent for the account of each Bank a facility fee at the rate of 0.15% per annum of such Bank’s Commitment Amount. Such facility fee shall accrue from and including the Effective Date to but excluding the Termination Date. Facility fees accrued during each calendar quarter shall be due and payable in arrears on the fifteenth day of the calendar month immediately succeeding such calendar quarter and on the Termination Date.
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(b) The Borrower shall pay to the Agent, for its own account, an administrative agent fee, in such amount and at such time or times, as may have been agreed upon separately between the Borrower and the Agent.
(c) On the Effective Date, the Borrower shall pay to the Agent for the account of each Bank a non-refundable up-front fee equal to 0.05% of such Bank’s Commitment Amount.
Section 2.08 Termination and Reduction of Commitments.
(a) Each Bank’s Commitment Amount permanently shall reduce to $0 and each Bank’s Commitment shall terminate on the Termination Date.
(b) Each Bank’s Commitment Amount permanently shall reduce to $0 and each Bank’s Commitment shall terminate upon the occurrence of any of the following events:
(i) the Custodian, any Control Affiliate thereof, or any successor by merger, stock sale, consolidation or sale of assets, shall cease to be the custodian of the Borrower’s assets,
(ii) any investment advisory agreement or management agreement to which the Borrower is a party on the Effective Date shall terminate, unless such agreement shall be novated to Morgan Stanley or a Control Affiliate thereof and such agreement shall contain substantially similar terms and conditions,
(iii) the Investment Adviser shall cease to be the investment adviser to the Borrower, unless the successor thereto is a Control Affiliate of Morgan Stanley,
(iv) the investment adviser of the Borrower shall (i) consolidate with or merge into any other Person, unless it is the survivor or such other Person is a Control Affiliate of Morgan Stanley, or (ii) sell or otherwise dispose of all or substantially all of its assets to any Person other than Morgan Stanley or a Control Affiliate thereof, or
(v) the Borrower fails to maintain in full force and effect its registration as a closed-end management company under the Investment Company Act.
(c) Subject to Section 2.05(d) hereof, during the Revolving Credit Period, the Borrower may, upon at least three (3) Domestic Business Days’ prior written notice to the Agent, (i) terminate the Commitments at any time, or (ii) reduce from time to time the Aggregate Commitment Amount by an aggregate amount of $5,000,000 or integral multiples of $1,000,000 in excess thereof (provided that immediately after giving effect to any such termination and each such reduction, the aggregate outstanding principal balance of the Loans would not exceed the Aggregate Commitment Amount), whereupon the Commitment Amounts of each of the Banks shall be reduced pro rata in accordance with their Commitment Percentage of the amount specified in such notice or, as the case may be, each Bank’s Commitment shall be terminated. Promptly after receiving any notice of the Borrower delivered pursuant to this Section, the Agent will notify the Banks of the substance thereof. Upon the effective date of any such reduction or termination, the Borrower shall pay to the Agent for the respective accounts of the Banks the full amount of any facility fee then accrued on the amount of the reduction. No reduction in the Commitment Amounts or termination of the Commitments may be reinstated.
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Section 2.09 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal and interest on the Loans and of fees hereunder and all other amounts due hereunder not later than (i) in the event that there is only one Bank (which is also the Agent), 3:00 p.m. (Boston time), and (ii) in all other events, 12:00 Noon (Boston time)), on the date when due, in Dollars and in Federal or other funds immediately available, to, except as otherwise expressly provided herein, the Agent at its address referred to in Section 9.01. The Agent shall promptly distribute to each Bank its appropriate share of each such payment received by the Agent for the account of the Banks. Whenever any payment of principal of, or interest on, Base Rate Loans or of fees shall be due on a day which is not a Domestic Business Day, the date for payment thereof shall be extended to the next succeeding Domestic Business Day and interest shall accrue during such extension. If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Banks hereunder that the Borrower will not make such payment in full, the Agent may assume that the Borrower has made such payment in full to the Agent on such date and the Agent may (but it shall not be required to), in reliance upon such assumption, cause to be distributed to each Bank on such due date an amount equal to the amount then due to such Bank. If and to the extent that the Borrower shall not have so made such payment, each Bank shall repay to the Agent forthwith on demand such amount distributed to such Bank together with interest thereon, for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Agent, at the Federal Funds Effective Rate.
(c) All payments by the Borrower hereunder and under any of the other Loan Documents shall be made in Dollars without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless the Borrower is compelled by law to make such deduction or withholding. If any such obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Agent, for the account of the Banks or (as the case may be) the Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Banks or the Agent to receive the same net amount which the Banks or the Agent would have received on such due date had no such obligation been imposed upon the Borrower. The Borrower will deliver promptly to the Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
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(d) Notwithstanding anything to the contrary contained in Section 2.09(c) hereof or in any other provision of the Loan Documents, the Borrower will not be required to make any additional payment under this Section 2.09 or under any other provision of the LoanDocuments with respect to any payment hereunder (i) by reason of any form or other document required to be furnished by such Bank to the Borrower or Agent under Section 2.11 hereof being inaccurate, being incomplete, expiring or otherwise being not in full compliance with Applicable Law, (ii) by reason of such Bank’s failure to timely furnish to the Borrower and Agent all forms and other documents required under Section 2.11 hereof and Applicable Law, or (iii) to the extent such Taxes are U.S. withholding Taxes imposed under Applicable Law on amounts payable to such Bank at the time such Bank becomes a party to this Agreement, designates a new lending office, or changes its place of organization or principal office, except in each case, to the extent that such Bank or such Bank’s assignor (if any) was entitled at the time of such assignment, designation or change to receive additional amounts from the Borrower with respect to such Taxes pursuant to this Section 2.09 or pursuant to any other provision of the Loan Documents.
(e) The Borrower hereby authorizes and irrevocably directs the Agent, at the Agent’s option at any time upon and following the due date for payment by the Borrower of any amounts under the Loan Documents, and without any further notice to or consent of the Borrower, to debit any account(s) of the Borrower with the Agent (including in its capacity as custodian to the Borrower) and apply amounts so debited toward the payment of any such amounts due and owing under the Loan Documents. Notwithstanding such authorization and direction, the Borrower hereby further acknowledges and agrees that (a) the Agent shall have no obligation to so debit any such account(s) and shall have no liability whatsoever to the Borrower for any failure to do so, and (b) the Borrower shall fully retain the obligation under the Loan Documents to make all payments owing by the Borrower thereunder when due.
Section 2.10 Computation of Interest and Fees. All interest and fees hereunder shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed.
Section 2.11 Withholding Tax Exemption.
(a) Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements.
(b) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:
(i) Each Bank that is a U.S. Person shall deliver to the Borrower (with a copy to the Agent) an original signed, properly completed IRS Form W-9 (or any successor form) certifying that the Bank is not subject to U.S. backup withholding Tax, on or prior to the date on which the Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, at the time or times prescribed by Applicable Law, and from time to time upon the request of the Borrower or Agent.
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(ii) Each Foreign Bank shall deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank, at the time or times prescribed by Applicable Law, and from time to time thereafter upon the request of the Borrower or the Agent (but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(A) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party that reduces or eliminates withholding Tax;
(B) duly completed copies of Internal Revenue Service Form W-8ECI (or any successor form);
(C) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate, in form and substance reasonably acceptable to Borrower and to Agent, to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form);
(D) to the extent a Foreign Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W- 9, and/or other certification documents, in form and substance reasonably acceptable to Borrower and to Agent, from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; or
(E) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower and/or the Agent to determine the withholding or deduction required to be made.
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(iii) Prior to the date on which any Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, at the time or times prescribed by Applicable Law and from time to time upon the request of the Borrower or Agent, each Bank shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.11(b)(iii), “FATCA” shall include any amendments made to FATCA after the Effective Date.
ARTICLE III
CONDITIONS
Section 3.01 Effectiveness. This Agreement shall become effective on the date that each of the following conditions shall have been satisfied (or waived in accordance with Section 9.05 hereof):
(a) receipt by the Agent of counterparts hereof signed by each of the parties hereto;
(b) receipt by the Agent for the account of each Bank, if requested by such Bank, of a duly executed Note dated on or before the Effective Date complying with the provisions of Section 2.04;
(c) receipt by the Agent of (1) the Security Agreement signed by the Borrower, and (2) (i) a perfection certificate from the Borrower in form and substance reasonably satisfactory to the Agent, (ii) copies of the results of current lien searches (or the equivalent in the applicable jurisdictions), such results to be in form and substance reasonably satisfactory to the Agent, (iii) UCC financing statements (or the equivalent in the applicable jurisdictions), in form and substance reasonably satisfactory to the Agent, and (iv) such other documents, instruments and/or agreements the Agent may reasonably require to perfect its security interest in the Collateral (as defined in the Security Agreement) in the relevant jurisdictions;
(d) receipt by the Banks of a legal opinion of Ropes & Gray LLP, counsel for the Borrower covering such matters relating to the transactions contemplated hereby as the Banks may reasonably request;
(e) receipt by the Agent of a certificate manually signed by an officer of the Borrower which is satisfactory to the Banks to the effect set forth in clause (e) and, if the Borrower is submitting a Notice of Borrowing on the Effective Date, clauses (c) and (d), of Section 3.02, such certificate to be dated the Effective Date and to be in form and substance reasonably satisfactory to the Agent;
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(f) receipt by the Agent of a manually signed certificate from the Secretary or Assistant Secretary of the Borrower in form and substance reasonably satisfactory to the Agent and dated the Effective Date as to the incumbency of, and bearing manual specimen signatures of, the Authorized Signatories who are authorized to execute and take actions under the Loan Documents for and on behalf of the Borrower, and certifying and attaching copies of (i) Charter Documents, with all amendments, restatements, supplements or other modifications thereto (including, without limitation, a copy of the Borrower’s Agreement and Declaration of Trust, with all amendments, restatements, supplements or other modifications thereto, certified by the Secretary of the Commonwealth of Massachusetts), (ii) the resolutions of the Borrower’s Board of Trustees authorizing the transactions contemplated hereby, (iii) the Prospectus and such material as accurately and completely sets forth all Investment Policies and Restrictions not reflected in the Prospectus, (iv) the investment management agreement between the Borrower and the Investment Adviser as then in effect, along with any other investment management or submanagement agreements to which the Borrower is a party as then in effect, (v) the Custody Agreement, (vi) the Borrower’s statement of assets and liabilities as of the Effective Date, and (vii) the Borrower’s Pricing Procedures;
(g) receipt by the Agent of a legal existence and good standing certificate for the Borrower from the Secretary of the Commonwealth of Massachusetts, dated as of a recent date;
(h) receipt by the Agent of a copy of the Declaration of Trust of the Borrower, with all amendments, restatements, supplements or other modifications thereto, certified by the Secretary of State of the State of its formation;
(i) the Agent shall have (x) completed its due diligence review, and the results of any such due diligence review are satisfactory in form and substance to the Agent, and (y) received all such documents and information as the Agent, at the request of any Bank, shall have requested in order to comply with “know-your-customer” and other anti-terrorism, anti- money laundering and similar rules and regulations and related policies;
(j) receipt by the Agent of all documents (including, without limitation, a duly completed Form FR U-1), opinions and instruments it may reasonably request prior to the execution of this Agreement relating to compliance with applicable rules and regulations promulgated by the Federal Reserve Board and other governmental and regulatory authorities, the existence of the Borrower, the authority for and the validity and enforceability of this Agreement and the Notes, if any, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Agent; and
(k) receipt by the Agent of a payoff letter and an irrevocable letter of direction in all respects satisfactory to the Agent to the effect that, or other evidence satisfactory to it that, all commitments in favor of the Borrower under, and all of the principal, interest, fees and other sums owing by the Borrower under, and all Liens securing the obligations of the Borrower in connection with, the Existing Credit Agreement shall have been terminated and satisfied in full, as the case may be;
(l) receipt by the Agent of payment of all (i) reasonable out-of-pocket expenses (including reasonable fees and disbursements of special counsel for the Agent) then payable hereunder, and (ii) fees then payable hereunder or under a separate fee letter;
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provided that this Agreement shall not become effective or be binding on any party hereto unless all of the foregoing conditions are satisfied not later than May 10, 2023. The Agent shall promptly notify the Borrower and the Banks of the Effective Date, and such notice shall be conclusive and binding on all parties hereto.
Section 3.02 All Borrowings. The obligation of each Bank to make a Loan on the occasion of any borrowing is subject to the satisfaction of the conditions precedent set forth in Section 3.01 (or such conditions being waived in accordance with Section 9.05) and the satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by Section 2.02(a)(X), along with all documents and information it may reasonably request to establish compliance with applicable rules and regulations promulgated by the Federal Reserve Board, and receipt by such Bank of all such documents and instruments from the Agent;
(b) receipt by the Agent of a Borrowing Base Report as required by Section 2.02(a)(Y), provided that if a Borrowing Base Report was delivered pursuant to Section 5.01(c) for the immediately preceding calendar month end then no additional Borrowing Base Report shall be required unless requested by the Agent or any Bank;
(c) the fact that, immediately after such borrowing, the aggregate outstanding principal amount of the Loans (i) will not exceed the lesser of (A) the Borrowing Base and (B) the Aggregate Commitment Amount as in effect on such date; and (ii) will not cause the aggregate amount of the Borrower’s outstanding Debt to exceed the Maximum Amount;
(d) the fact that, immediately before and after such borrowing, no Default shall have occurred and be continuing;
(e) the fact that the representations and warranties of the Borrower contained in this Agreement and the other Loan Documents shall be true on and as of the date of such borrowing and with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); and
(f) with respect to that particular Bank only, no change shall have occurred in any law or regulation thereunder or interpretation thereof (other than a Failure) that in the opinion of that Bank would make it illegal for that Bank to make such Loan.
Each borrowing hereunder shall be deemed to be a representation and warranty by the Borrower on the date of such borrowing as to the facts specified in clauses (c), (d) and (e) of this Section.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 4.01 Existence and Power; Investment Company.
(a) The Borrower has been duly formed and is validly existing as a voluntary association with transferable shares, commonly referred to as a “Massachusetts business trust”, under the laws of the Commonwealth of Massachusetts, is in good standing with the Secretary of the Commonwealth of Massachusetts, and has all business trust powers and all authorizations and approvals required to carry on its business as now conducted. The Borrower is duly qualified to do business and is in good standing in each jurisdiction in which the nature of its business, assets, and properties, including without limitation, the performance of the Borrower’s Obligations, requires such qualification, except where the failure to do so is not reasonably likely to result in a Material Adverse Effect.
(b) The Borrower is a closed-end management investment company registered as such under the Investment Company Act, and the outstanding shares of each class of its stock (i) have been legally issued and are fully paid and non-assessable, (ii) have been duly registered under the Securities Act to the extent required, and (iii) have been sold only in states or other jurisdictions in which all filings required to be made under applicable state securities laws have been made. The Borrower is not an Affected Financial Institution.
Section 4.02 Authorization; Execution and Delivery, Etc. The execution and delivery by the Borrower of, and the performance by the Borrower of its obligations under, this Agreement, each of the other Loan Documents, and the other instruments, certificates and agreements contemplated hereby and thereby, are within its business trust powers, and have been duly authorized by all requisite action by the Borrower. This Agreement and each of the other Loan Documents, and the other instruments, certificates and agreements contemplated hereby and thereby, have been duly executed and delivered by the Borrower, and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
Section 4.03 Noncontravention. Neither the execution and delivery by the Borrower of this Agreement, any other Loan Document, or any instrument, certificate or agreement referred to herein or therein, or contemplated hereby or thereby, nor the consummation of the transactions herein or therein contemplated, nor compliance with the terms, conditions and provisions hereof or thereof by the Borrower will (a) conflict with, or result in a breach or violation of, or constitute a default under any of the Charter Documents, (b) conflict with or contravene (i) any Applicable Law, (ii) any contractual restriction binding on or affecting the Borrower or any of its assets, or (iii) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower or any of its assets, (c) result in a breach or violation of, or constitute a default under, or permit the acceleration of any obligation or liability in, or, but for any requirement for the giving of notice or the passage of time (or both), that would constitute such a conflict with, breach or violation of, default under, or permit any such acceleration in, any contractual obligation or any agreement or document to which the Borrower is a party or by which it or any of its properties is bound (or to which any such obligation, agreement or document relates), or (d) result in any Adverse Claim upon any asset of the Borrower.
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Section 4.04 Governmental Authorizations; Private Authorization. Assuming the financing statement in the form attached to the Security Agreement has been filed in the office indicated on such financing statement and appropriate continuation statements have been timely filed in such office, the Borrower has obtained all necessary Governmental Authorizations and Private Authorizations, and made all Governmental Filings necessary for the execution and delivery by the Borrower of, and the performance by the Borrower of its obligations under, this Agreement and each of the other Loan Documents and the agreements, certificates and instruments contemplated hereby or thereby, and no Governmental Authorization, Private Authorization or Governmental Filing which has not been obtained or made, is required to be obtained or made by the Borrower in connection with the execution and delivery by the Borrower of, or the performance of its obligations under, this Agreement or any of the other Loan Documents.
Section 4.05 Regulations T, U and X. The execution, delivery and performance by the Borrower of this Agreement, the Notes and the other Loan Documents and the transactions contemplated hereunder and thereunder will not (assuming all Forms FR U-1 referred to in Article III shall have been executed and delivered by the Borrower and the appropriate Bank for retention in the files of such Bank) violate or be inconsistent with any provision of Regulation T, Regulation U or Regulation X.
Section 4.06 Non-Affiliation with Banks. So far as appears from the records of the Borrower, neither any Bank nor any Affiliate of any Bank known to the Borrower is an Affiliate of the Borrower, and none of the Borrower or any Affiliate of the Borrower is an Affiliate of any Bank or any Affiliate thereof known to the Borrower.
Section 4.07 Subsidiaries. The Borrower has no Subsidiaries.
Section 4.08 Financial Information.
(a) The statement of assets and liabilities of the Borrower, as of the Effective Date, and each financial statement delivered by the Borrower to the Banks in accordance with Section 5.01, present and will present fairly, in all material respects, in conformity with Generally Accepted Accounting Principles applicable to the Borrower, the financial position of the Borrower as of such date.
(b) Each of the financial statements of the Borrower (whether audited or unaudited) delivered to the Banks under the terms of this Agreement fairly presents all material contingent liabilities in accordance with Generally Accepted Accounting Principles.
Section 4.09 Litigation. There is no action, suit, proceeding or investigation of any kind pending against, or to the knowledge of the Borrower, threatened against or affecting, the Borrower before any court or arbitrator or any Authority which (a) would reasonably be expected to have a Material Adverse Effect, (b) calls into question the validity or enforceability of, or otherwise seeks to invalidate, any Loan Document, or (c) might, individually or in the aggregate, materially adversely affect any Loan Document.
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Section 4.10 ERISA.
(a) The Borrower is not a member of an ERISA Group and has no liability in respect of any Benefit Arrangement, Plan or Multiemployer Plan subject to ERISA.
(b) No Loan will constitute a “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code for which an exemption is not available.
Section 4.11 Taxes. The Borrower has elected to be treated and qualifies as a “regulated investment company” within the meaning of the Internal Revenue Code. The Borrower has timely filed all United States Federal income tax returns and all other tax returns which are required to be filed by it, if any, and has paid all taxes due pursuant to such returns, if any, or pursuant to any assessment received by the Borrower, except for any taxes or assessments which are being contested in good faith by appropriate proceedings, with respect to which adequate reserves have been established in accordance with Generally Accepted Accounting Principles applicable to the Borrower consistently applied and the non-payment of which could not have a Material Adverse Effect, and the charges, accruals and reserves on the books of the Borrower in respect of taxes or other governmental charges, if any, are, in the opinion of the Borrower, adequate.
Section 4.12 Compliance.
(a) The Borrower is in compliance with the Investment Company Act and the Securities Act except where (i) noncompliance therewith would not reasonably be expected to have a Material Adverse Effect, (ii) the necessity of compliance therewith is being contested in good faith by appropriate proceedings, or (iii) exemptive relief or no action relief has been obtained therefrom and remains in effect. The Borrower is in compliance with all other Applicable Laws, all applicable ordinances, decrees, requirements, orders and judgments of, and all of the terms of any applicable licenses and permits issued by, any Authority except where the necessity of compliance therewith is being contested in good faith by appropriate proceedings or exemptive relief has been obtained therefrom and remains in effect or where non-compliance therewith would not reasonably be expected to have a Material Adverse Effect. The Borrower is in compliance with all agreements and instruments to which it is a party or may be subject or to which any of its properties may be bound, in each case where the non-compliance therewith would not reasonably be expected to have a Material Adverse Effect. The Borrower is in compliance in all material respects with all of its Investment Policies and Restrictions.
| (b) | No Default has occurred and is continuing. |
(c) The Borrower is not subject to any Applicable Law (other than the Investment Company Act) which limits its ability to incur indebtedness. The Borrower has not entered into any agreement with any Authority limiting its ability to incur Indebtedness.
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Section 4.13 Fiscal Year. The Borrower has a fiscal year which is twelve calendar months and, as of the Effective Date, ends on June 30 of each year.
Section 4.14 Full Disclosure. All information heretofore furnished by the Borrower to the Agent and the Banks for purposes of or in connection with this Agreement or any of the other Loan Documents or any transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Borrower to the Agent or the Banks will be, true and accurate in all material respects on the date as of which such information is stated or certified, and no such information contains, or will contain, any material misrepresentation or any omission to state therein matters necessary to make the statements made therein not misleading in any material respect.
Section 4.15 Offering Documents. The information set forth in the Prospectus and each report to stockholders of the Borrower, was, on the date thereof, true, accurate and complete in all material respects and does not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in any material respect.
Section 4.16 Sanctions, etc
None of the Borrower, any of the Borrower’s Subsidiaries or any director, officer or employee of the Borrower, or, to the Borrower’s knowledge, any agent of the Borrower is a Person that is, or is owned or controlled by Persons that are (x) the subject or target of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”) or (y) located, organized or resident of a country, region or territory that is, or whose government is, the subject of Sanctions (as of the Effective Date, Crimea, the Kherson and Zaporzhizihia regions of Ukraine, the so-called Luhansk People’s Republic, the so-called Donetsk People’s Republic, Cuba, Iran, North Korea, and Syria), (b) the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries, and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and (c) the Borrower, the directors and officers of the Borrower and, to the knowledge of the Borrower, the employees and agents of the Borrower, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
Section 4.17 Title to Assets. The Borrower has good and marketable title to all its assets and other property, except where failure to have such title would not reasonably be expected to have a Material Adverse Effect.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment hereunder or any amount payable under the Loan Documents remains unpaid:
Section 5.01 Information. The Borrower will deliver to the Agent and each Bank:
(a) as soon as available and in any event within 90 days after the end of each fiscal year of the Borrower a statement of assets and liabilities of the Borrower, including the portfolio of investments, as of the end of such fiscal year, and the related statements of operations and changes in net assets of the Borrower for such fiscal year, together with an audit report thereon issued by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the end of the first semi-annual period of each fiscal year of the Borrower, a statement of assets and liabilities of the Borrower, including the portfolio of investments, as of the end of such period, and the related statements of operations and changes in net assets of the Borrower for such period, all in reasonable detail, prepared in accordance with Generally Accepted Accounting Principles applicable to the Borrower, consistently applied, and certified (subject to normal year-end adjustments) as to fairness of presentation, Generally Accepted Accounting Principles and consistency by an Authorized Signatory of the Borrower or accompanied by an audit report thereon issued by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing;
(c) (i) if, as of the close of business on the last Domestic Business Day of each calendar month (each a “Calculation Date”) there shall be any Loans outstanding, then as soon as available and in any event not later than the third Domestic Business Day thereafter, a Borrowing Base Report and a Valuation Report, in each case as at the close of business on such Calculation Date, (ii) during any Permitted Tender Offer Reporting Period, as soon as available and in any event not later than the third Domestic Business Day thereafter, a Borrowing Base Report and a Valuation Report, in each case as at the close of business on the last Domestic Business Day of each calendar week, and (iii) as soon as available and in any event not later than the third Domestic Business Day after requested by the Agent, a Borrowing Base Report and a Valuation Report, in each case as of the close of business on such date of request; provided that if delivery of a Borrowing Base Report and a Valuation Statement covering the same reporting period is required under more than one of clauses (i) through (iii) above, the Borrower shall only be required to deliver one Borrowing Base and one Valuation Report for such reporting period;
(d) simultaneously with the delivery of each Borrowing Base Report and each Valuation Report delivered pursuant to clause (c) above, a certificate of an Authorized Signatory reasonably acceptable to the Banks stating whether any Default exists on the date of such certificate and, if any Default then exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
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(e) at least forty-five days prior to any scheduled repayment of all or any portion of the Preferred Shares, notice of Borrower’s intention to repay or redeem such Preferred Shares;
(f) promptly and in any event within (i) one (1) Domestic Business Day after any officer of the Borrower obtains knowledge of any Default, if such Default is then continuing, a certificate of an Authorized Signatory setting forth the details thereof, and (ii) three (3) Domestic Business Day after such officer obtains knowledge of such Default, a certificate of an Authorized Signatory either (x) advising that such Default no longer exists, or (y) setting forth the action which the Borrower is taking or proposes to take with respect thereto;
(g) promptly after the filing thereof with the SEC or the mailing thereof to shareholders of the Borrower, copies of all reports to shareholders, amendments and supplements to the Borrower’s registration statement, the Prospectus, proxy statements, financial statements and other materials of a financial or otherwise material nature;
(h) promptly upon any officer of the Borrower becoming aware of any action, suit or proceeding of the type described in Section 4.09, notice and a description thereof and copies of any filed complaint relating thereto;
(i) (1) written notice of each material amendment, supplement or other modification of the Pricing Procedures simultaneously with the delivery by the Borrower of notice thereof to the trustees of the Borrower (or any of them) but in no event later than five (5) Domestic Business Days after such amendment, supplement or other modification shall become effective, and (2) a copy of the Borrower’s monthly price override report substantially simultaneously with the delivery thereof to the Borrower’s valuation committee; and
(j) from time to time such additional information (y) regarding the financial position or business of the Borrower, including without limitation, listing reports and Valuation Reports, and (z) in order to comply with “know-your-customer” and other anti-terrorism, anti- money laundering and similar rules and regulations and related policies, as the Agent, at the request of any Bank, may reasonably request.
Section 5.02 Payment of Obligations. The Borrower will duly and punctually pay or cause to be paid the principal and interest on the Loans and all other amounts provided for in this Agreement and the other Loan Documents. The Borrower will pay and discharge, at or before maturity, all of the Borrower’s lawful obligations and liabilities that, if unpaid, would reasonably be expected to have a Material Adverse Effect, including, without limitation, tax liabilities, except where the same may be contested in good faith by appropriate proceedings, and will maintain, in accordance with Generally Accepted Accounting Principles applicable to the Borrower, appropriate reserves for the accrual of any of the same.
Section 5.03 Maintenance of Insurance. The Borrower will maintain with financially sound and reputable insurance companies, policies with respect to its assets and property and business of the Borrower against at least such risks and contingencies (and with no greater risk retentions) and in at least such amounts as are required by all Applicable Law and, in addition, as are customary in the case of registered closed-end investment companies; and will furnish to the Banks, upon request, information presented in reasonable detail as to the insurance so carried.
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Section 5.04 Conduct of Business and Maintenance of Existence.
(a) The Borrower will continue to engage in business of the same general type as now conducted by it as described in its Prospectus and as provided pursuant to the Investment Policies and Restrictions as in effect on the Effective Date.
(b) The Borrower will preserve, renew and keep in full force and effect its existence as a Massachusetts business trust and its rights, privileges and franchises necessary in the normal conduct of its business.
(c) The Borrower will not amend, restate, supplement or otherwise modify any of the Charter Documents if such amendment, termination, supplement or modification would reasonably be expected to have a Material Adverse Effect. The Borrower will provide copies to the Agent of all amendments, restatements, supplements, and other modifications of any of the Charter Documents, in each case prior to the effective date of any such amendment, restatement, supplement, or other modification. The Borrower will comply in all material respects with the Pricing Procedures and the Charter Documents.
(d) The Borrower will at all times place and maintain the Collateral (as defined in the Security Agreement) in the custody of the Custodian.
Section 5.05 Compliance with Laws. The Borrower will comply in all respects with the Investment Company Act, all other Applicable Laws and the requirements of any Authority with respect thereto except where (i) non-compliance therewith would not reasonably be expected to have a Material Adverse Effect, (ii) the necessity of compliance therewith is contested in good faith by appropriate proceedings, or (iii) exemptive relief or no-action relief has been obtained therefrom and remains in effect. The Borrower will file all federal and other tax returns, reports and declarations required by all relevant jurisdictions on or before the due dates for such returns, reports and declarations and will pay all taxes and other governmental assessments and charges as and when they become due (except those that are being contested in good faith by the Borrower and as to which the Borrower has established appropriate reserves on its books and records and the nonpayment of which could not have a Material Adverse Effect).
Section 5.06 Inspection of Property, Books and Records. The Borrower will, or will cause the Custodian (on the Borrower’s behalf) to, keep proper books of account and records in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities in accordance with Applicable Law, including the Investment Company Act, and will permit representatives of any Bank, at such Bank’s expense, to visit and inspect any of its offices, to examine and make abstracts from any of its books and records and to discuss its affairs, finances and accounts with its senior executive officers and independent public accountants, all at such reasonable times and as often as may reasonably be desired.
Section 5.07 Indebtedness. The Borrower will not create, assume or suffer to exist any Indebtedness other than:
(a) Debt arising under this Agreement, the Notes and the other Loan Documents;
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(b) Debt in favor of the Custodian incurred for purposes of clearing and settling purchases and sales of securities or consisting of overnight extensions of credit from the Custodian in the ordinary course of business;
(c) Debt in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as such judgments and awards do not constitute an Event of Default and so long as execution is not levied thereunder and in respect of which the Borrower (i) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review or (ii) shall have obtained an unsecured performance bond, and Debt in respect of such unsecured performance bond;
(d) Debt (other than Debt for borrowed money) arising in connection with portfolio investments and investment techniques arising in the ordinary course of the Borrower’s business, including Financial Contracts, to the extent that such Debt is permissible under the Investment Company Act and consistent with the Borrower’s Investment Policies and Restrictions;
(e) endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and
(f) the Preferred Shares, provided that the Borrower shall not issue additional Preferred Shares nor any other preferred securities after the Effective Date;
provided that in no event shall the Borrower (i) enter into or utilize Financial Contracts other than in the ordinary course of business for hedging or investment purposes in accordance with its Investment Policies and Restrictions, or (ii) borrow money or create leverage under any arrangement other than (A) from the Banks hereunder, (B) from the Custodian to the extent provided in clause (b) hereof, or (C) as contemplated by clause (d) hereof.
Section 5.08 Liens. The Borrower will not create, assume, incur or suffer to exist any Lien on any of its assets (including the income and profits thereof), in each case whether such asset is now owned or hereafter acquired, except (a) Liens of the Agent, on behalf of itself and the Banks, created by or pursuant to any of the Security Documents or any of the other Loan Documents; (b) Liens (other than non-possessory Liens which, pursuant to Applicable Law are, or may be, entitled to take priority (in whole or in part) over prior, perfected, liens and security interests) for judgments or decrees, taxes, assessments or other governmental charges or levies the payment of which is not at the time required or is being contested in good faith, (c) Liens in favor of the Custodian granted pursuant to the Custody Agreement to secure obligations arising thereunder, and (d) Liens created in connection with the Borrower’s portfolio investments and investment techniques (and not for the primary purpose of borrowing money), including Liens securing obligations under Financial Contracts, to the extent permitted by the provisions of the Prospectus and the Investment Policies and Restrictions, provided that the aggregate value of all of the Borrower’s assets subject to any Lien permitted by this clause (d) does not at any time exceed 5% of the Total Assets.
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Section 5.09 Consolidations, Mergers and Sales of Assets. The Borrower will not divide or consolidate or merge with or into any other Person, nor will the Borrower sell, lease or otherwise transfer, directly or indirectly, all or any substantial part of its assets to any other Person (in each case, whether in one transaction or a series of related transactions), except that the Borrower may sell its assets in the ordinary course of business as described in its Prospectus and in connection with a Permitted Tender Offer. The Borrower may invest in excess of 10% of its investable assets in one or more other management investment companies (or in affiliated investment companies) to the extent permitted by section 12(d) of the Investment Company Act and rules thereunder, provided that the Borrower will not invest all or substantially all of its investable assets in any other management investment company or otherwise employ a master- feeder or fund of funds investment structure.
Section 5.10 Use of Proceeds. The Borrower shall use the proceeds of each Loan (a) to refinance the Existing Credit Agreement on the Effective Date, and (b) for its general business purposes, including, without limitation the purchase of investment securities, the payment of Borrower’s obligations in connection with a Permitted Tender Offer, and temporary or emergency purposes, provided that in no event shall (i) the proceeds of any Loan be used for purposes that would violate any provision of any applicable statute, rule, regulation, order or restriction applicable to the Borrower or Regulation U or (ii) the Borrower use the proceeds of any Loan for anything other than its general business or working capital purposes.
Section 5.11 Compliance with Investment Policies and Restrictions. The Borrower will at all times comply with the Investment Policies and Restrictions, and will not make any investment, loan, advance or extension of credit inconsistent with the Investment Policies and Restrictions.
Section 5.12 Non-Affiliation with Banks. The Borrower will not at any time become an Affiliate of any Bank or any Affiliate thereof known to the Borrower, and the Borrower will use its reasonable efforts to ensure that none of its Affiliates is or becomes an Affiliate of any Bank or any Affiliate thereof known to the Borrower to be such.
Section 5.13 Regulated Investment Company. The Borrower will maintain its status as a “regulated investment company” under the Internal Revenue Code at all times and will make sufficient distributions to qualify to be taxed as a “regulated investment company” pursuant to subchapter M of the Internal Revenue Code.
Section 5.14 No Subsidiary. The Borrower will not have at any time any Subsidiary.
Section 5.15 ERISA. The Borrower will not become a member of any ERISA Group and will not have any liability in respect of any Benefit Arrangement, Plan or Multiemployer Plan subject to ERISA.
Section 5.16 Fiscal Year. The Borrower will not change its fiscal year from that set forth in Section 4.13 hereof without prior written notice to the Banks.
Section 5.17 Regulation U. The Borrower will not permit more than 25% of the value (as determined by any reasonable method) of the Borrower’s assets to be represented by “margin stock” (as defined under Regulation U) at any time.
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Section 5.18 Asset Coverage. The Borrower will not at any time (a) permit the aggregate amount of Total Liabilities that are Senior Securities Representing Indebtedness to exceed 33 1/3% of Adjusted Net Assets or (b) permit a Preferred Asset Coverage Default to occur while a Loan is outstanding.
Section 5.19 Maximum Amount. The Borrower will not at any time permit the aggregate amount of its outstanding Debt to exceed the Maximum Amount.
Section 5.20 Further Assurances. The Borrower shall execute and deliver all such documents and instruments, and take all such actions, as the Agent may from time to time reasonably request with respect to the transactions contemplated hereunder or under any of the other Loan Documents.
Section 5.21 Sanctions, etc. The Borrower:
(a) shall not directly or indirectly use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti- Corruption Laws, (ii) to fund, finance or facilitate any activities or business of or with any Person, or in any country, region or territory that, at the time of such funding, financing or facilitating is, or whose government is, the subject of Sanctions, or (iii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating, to the knowledge of the Borrower, in the Loans, whether as underwriter, advisor or investor); and
(b) shall maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower and its directors, officers, employees and agents, with Anti- Corruption Laws and applicable Sanctions.
Section 5.22 Restricted Payments.
The Borrower will not declare or make, or allow to be declared or made, any Restricted Payment, except:
(a) the Borrower may declare or make any Restricted Payment payable solely in shares of the common stock of the Borrower; and
(b) the Borrower may declare or make any Restricted Payment if, immediately before and after giving effect thereto, (i) no Event of Default shall exist or would occur, or (ii) whether or not an Event of Default shall exist or would occur, no principal of any Loan shall or would be outstanding, provided that any such Restricted Payment shall (x) be (1) within the ordinary course of business of the Borrower and (2) consistent with Borrower’s past practice with respect to the making of Restricted Payments or (y) made in connection with a Permitted Tender Offer, provided that any Restricted Payment made in reliance on clause (y) shall not be deemed to constitute the ordinary course of business of the Borrower.
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ARTICLE VI
DEFAULTS
Section 6.01 Events of Default. If one or more of the following events (“Events of Default”) shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due (whether at maturity or any accelerated date of maturity or any other date fixed for payment or prepayment) (i) any interest on any Loan or any fees or any other amount payable hereunder or under any of the other Loan Documents within five (5) days of the date therefor, or (ii) any principal of any Loan; or
(b) the Borrower shall fail to observe or perform any covenant contained in (i) Sections 5.01(a), (b), 5.04(b), 5.07, 5.08, 5.09, 5.10, 5.13, 5.14, 5.17, 5.18, 5.19, 5.21, or 5.22, or (ii) Sections 5.01(c) or (d) and such failure shall continue unremedied for three (3) Domestic Business Days; or
(c) the Borrower shall fail to observe or perform any covenant or agreement contained in this Agreement or any Loan Document (other than those covered by clauses (a) or (b) above) and such failure shall continue unremedied for a period of thirty (30) calendar days; or
(d) any representation, warranty, certification or statement made (or deemed made) by the Borrower in this Agreement or any other Loan Document or in any certificate, financial statement or other document delivered pursuant to this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made (or deemed made); or
(e) the Borrower shall fail to make any payment in respect of any Debt in an aggregate principal amount in excess of the Threshold Amount when due (after giving effect to any applicable grace period); or
(f) any default or other similar event that results in a mandatory redemption or mandatory partial redemption or mandatory repayment or mandatory partial repayment, shall occur with respect to (i) the Preferred Shares or (ii) Debt of the Borrower in excess of the Threshold Amount which (i) results in the acceleration of the maturity of such Debt, (ii) enables the holder of such Debt or any Person acting on such holder’s behalf to accelerate the maturity thereof, or (iii) in the case of Debt arising under a Financial Contract, enables the other party thereto to terminate such Financial Contract; or
(g) the Borrower shall seek the appointment of a trustee, receiver, liquidator, custodian or other similar official for it or any substantial part of its property, or shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or any of its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator or other similar official for it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or the Borrower shall make a general assignment for the benefit of creditors, or shall fail generally (or admit in writing its inability) to pay its debts as they become due, or shall take any action to authorize any of the foregoing; or
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(h) an involuntary case or other proceeding shall be commenced against the Borrower seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or an order for relief shall be entered against the Borrower under the federal bankruptcy laws as now or hereafter in effect; or
(i) a judgment or order for the uninsured payment of money in excess of the Threshold Amount shall be rendered against the Borrower and such judgment or order shall continue unsatisfied or unstayed for a period of thirty (30) days; or
(j) the Agent for any reason shall cease to have a valid and perfected first priority security interest in the Collateral (as defined in the Security Agreement), free and clear of all Adverse Claims; or
(k) the Borrower’s shares of common stock shall be suspended from trading on The New York Stock for more than two consecutive days upon which trading in such shares generally occurs on such exchange, or shall be delisted; or
(l) any of the Investment Policies and Restrictions that may not be changed without the approval of stockholders of the Borrower are changed;
then, and in every such event, the Agent shall (i) if requested by Banks constituting Required Banks by notice to the Borrower terminate the Commitments, and they shall thereupon terminate, and (ii) if requested by Banks constituting Required Banks by notice to the Borrower declare the Loans (together with accrued interest thereon) to be, and the Loans (together with accrued interest thereon and all other sums owing under the Loan Documents) shall thereupon become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; provided that in the case of any of the Events of Default specified in clause (g) or (h) above with respect to the Borrower, automatically without any notice to the Borrower or any other act by the Agent or any Bank, the Commitments shall thereupon terminate and the Loans (together with accrued interest thereon and all other sums owing under the Loan Documents) shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
Section 6.02 Remedies. No remedy herein conferred upon the Banks is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of law.
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ARTICLE VII
THE AGENT
Section 7.01 Appointment and Authorization. Each Bank irrevocably appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the Notes and the other Loan Documents as are delegated to the Agent by the terms hereof or thereof, together with all such powers as are reasonably incidental thereto. Any reference to an agent for the Banks in, or in connection with, any Loan Document shall be a reference to the Agent.
Section 7.02 Action by Agent. The duties and responsibilities of the Agent hereunder are only those expressly set forth herein. The relationship between the Agent and the Banks is and shall be that of agent and principal only, and nothing contained in this Agreement or any of the other Loan Documents shall be construed to constitute the Agent as a trustee for any Bank. Without limiting the generality of the foregoing, the Agent shall not be required to take any action with respect to any Default except as expressly provided in Article VI. The Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Agent by the Borrower or a Bank.
Section 7.03 Consultation with Experts. The Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. The Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Agent. The Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Covered Persons. The exculpatory provisions of this Article shall apply to any such sub agent and to the Covered Persons of the Agent and any such sub agent, and shall apply to their respective activities in connection with the credit facilities provided for herein as well as activities as Agent.
Section 7.04 Liability of Agent. Neither the Agent nor any of its directors, officers, agents or employees shall be liable to a Bank for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct. Neither the Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with this Agreement or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements of the Borrower; (c) the satisfaction of any condition specified in Article III, except receipt of items required to be delivered to it; or (d) the validity, enforceability, effectiveness or genuineness of this Agreement, the Notes, the other Loan Documents or any other instrument or writing furnished in connection herewith or therewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine or to be signed by the proper party or parties. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of the Banks, the Agent may presume that such condition is satisfactory to the Banks unless the Agent shall have received notice to the contrary from a Bank within a reasonable period of time prior to the making of such Loan.
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Section 7.05 Indemnification. Each Bank shall, ratably in accordance with its Commitment Percentage (or, if the Commitments shall have expired or terminated, its Commitment Percentage as in effect immediately prior to such expiration or termination), indemnify the Agent and its affiliates, officers, directors and employees (to the extent not reimbursed by the Borrower) for all claims, liabilities, losses, damages, costs, penalties, actions, judgments and expenses and disbursements of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel (collectively, the “Liabilities”) that such Person may suffer or incur in connection with this Agreement or any of the other Loan Documents or any action taken or omitted by such Person hereunder or thereunder, provided that no Bank shall have any obligation to indemnify any such Person against any Liabilities that are determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Person’s gross negligence or willful misconduct, provided, however, that no action taken or not taken in accordance with the directions of the Required Banks shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section.
Section 7.06 Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Bank, 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 any action under this Agreement.
Section 7.07 Successor Agent. The Agent may resign at any time by giving written notice thereof to the Banks and the Borrower. Upon any resignation of the Agent, the Required Banks shall have the right to appoint a successor Agent with, if no Event of Default has occurred and is continuing, the prior written consent of the Borrower, which consent shall not be unreasonably withheld or delayed. If no successor Agent shall have been so appointed by the Required Banks within 30 days after the retiring Agent gives notice of resignation, then the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which shall be a commercial bank organized or licensed under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of its appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Article shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent.
Section 7.08 Agent as Bank. In its individual capacity, State Street and any other Bank that serves as a successor Agent hereunder shall have the same obligations and the same rights, powers and privileges in respect of its Commitment and the Loans made by it as it would have were it not also the Agent.
Section 7.09 Distribution by Agent. If in the opinion of the Agent the distribution of any amount received by it in such capacity hereunder, under the Notes or under any of the other Loan Documents might involve it in liability, it may refrain from making such distribution until its right to make such distribution shall have been adjudicated by a court of competent jurisdiction. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and to such Persons as shall be determined by such court.
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Section 7.10 Delinquent Banks.
(a) Notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, any Bank that (i) willfully does not, (ii) does not as a result of a Failure (as defined below) (A) make available to the Agent its pro rata share of any Loan, or (B) comply with the provisions of Section 9.04 with respect to making dispositions and arrangements with the other Banks, where such Bank’s share of any payment received, whether by setoff or otherwise, is in excess of its pro rata share of such payments due and payable to all of the Banks, or (iii) has become the subject of a Bail-in Action, or has a direct or indirect parent company that has become the subject of a Bail-in Action, in each case as, when and to the full extent required by the provisions of this Agreement, shall be deemed delinquent (a “Delinquent Bank”) and shall be deemed a Delinquent Bank until such time as such delinquency is satisfied. A Delinquent Bank shall be deemed to have assigned any and all payments due to it from the Borrower, whether on account of outstanding Loans, interest, fees or otherwise, to the remaining nondelinquent Banks for application to, and reduction of, their respective pro rata shares of all outstanding Loans, interest, fees and other amounts. The Delinquent Bank hereby authorizes the Agent to distribute such payments to the nondelinquent Banks in proportion to their respective pro rata shares of all outstanding Loans. A Delinquent Bank shall be deemed to have satisfied in full a delinquency when and if, as a result of application of the assigned payments to all outstanding Loans of the nondelinquent Banks, the Banks’ respective pro rata shares of all outstanding Loans have returned to those in effect immediately prior to such delinquency and without giving effect to the nonpayment causing such delinquency. The provisions of this Section 7.10 shall not affect the rights of the Borrower against any such Delinquent Bank.
(b) For purposes of this Section 7.10, a “Failure” of a Bank shall mean (i) it shall seek the appointment of a trustee, receiver, liquidator, custodian or other similar official for it or any substantial part of its property, or shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator or other similar official for it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (ii) it makes a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate (or analogous) action to authorize any of the foregoing, or (iii) an involuntary case or other proceeding shall be commenced against it seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it, (iv) an order for relief shall be entered against it under the bankruptcy laws as now or hereafter in effect, or (v) it or any direct or indirect parent company becomes the subject of a Bail-In Action.
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Section 7.11 Erroneous Payments.
(a) If the Agent notifies a Bank, or any Person who has received funds on behalf of a Bank (any such Bank or other recipient, a “Payment Recipient”) that the Agent has determined in its sole discretion that any funds received by such Payment Recipient from the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Agent, and such Payment Recipient shall (and shall cause any other Payment Recipient who received such funds on its behalf to) promptly, but in no event later than two (2) Domestic Business Days thereafter, return to the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Agent to any Payment Recipient under this paragraph shall be conclusive, absent manifest error. If a Payment Recipient receives any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise and does not receive a corresponding payment notice or payment advice, such payment, prepayment or repayment shall be presumed to be in error absent written confirmation from the Agent to the contrary.
(b) Each Bank hereby authorizes the Agent to set off, net and apply any and all amounts at any time owing to such Bank under any Loan Document, or otherwise payable or distributable by the Agent to such Bank under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to the Agent under the immediately preceding paragraph or under the indemnification provisions of this Agreement.
(c) For so long as an Erroneous Payment (or portion thereof) has not been returned by any Payment Recipient who received such Erroneous Payment (or portion thereof) (such unrecovered amount, an “Erroneous Payment Return Deficiency”) to the Agent after demand therefor in accordance with the provisions of this Section 7.11, (i) the Agent may elect, in its sole discretion on written notice to such Bank, that all rights and claims of such Bank with respect to the Loans or other Obligations owed to it up to the amount of the corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment (the “Corresponding Loan Amount”) shall immediately vest in the Agent upon such election; after such election, the Agent (x) may reflect its ownership interest in Loans in a principal amount equal to the Corresponding Loan Amount in the Register, and (y) upon five (5) Domestic Business Days’ written notice to such Bank, may sell such Loan (or portion thereof) in respect of the Corresponding Loan Amount, and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by such Bank shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such Bank, and (ii) each party hereto agrees that, except to the extent that the Agent has sold such Loan, and irrespective of whether the Agent may be equitably subrogated, the Agent shall be contractually subrogated to all the rights of such Bank with respect to the Erroneous Payment Return Deficiency (such rights, the “Erroneous Payment Subrogation Rights”).
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(d) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Agent or any of its Affiliates from such Borrower.
(e) No Payment Recipient shall assert any right or claim to an Erroneous Payment, and each hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(f) Each party’s obligations, agreements and waivers under this Section 7.11 with respect to the making of any Erroneous Payment shall survive the resignation or replacement of the Agent, any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, neither the Borrower nor any of its Affiliates shall have any obligations or liabilities directly or indirectly arising out of this Section 7.11 in respect of any Erroneous Payment.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.01 Additional Costs; Capital Adequacy.
(a) If any new law, rule or regulation, or any change after the Effective Date in the interpretation or administration of any Applicable Law, rule or regulation by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank or its Lending Office with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency in connection therewith issued, promulgated or enacted after the Effective Date shall:
(i) subject any Bank (or its Lending Office) to any tax, duty or other charge with respect to its Loans, its Note or its Commitment, or shall change the basis of taxation of payments to any Bank (or its Lending Office) of the principal of or interest on its Loans or any other amounts due under this Agreement or its Commitment, in each case except for any tax on, or changes in the rate of tax on the overall net income of, or franchise taxes payable by, such Bank or its Lending Office imposed by the jurisdiction in which such Bank’s principal executive office or Lending Office is located; or
(ii) impose, modify or deem applicable any reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Bank (or its Lending Office) or shall impose on any Bank (or its Lending Office) any other condition affecting its Loans, its Note or its Commitment; or
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(iii) impose on any Bank any other conditions or requirements with respect to this Agreement, the other Loan Documents, the Loans or such Bank’s Commitment;
and the result of any of the foregoing is to increase the cost to such Bank (or its Lending Office) of making, funding, issuing, renewing, extending or maintaining any Loan or such Bank’s Commitment, or to reduce the amount of any sum received or receivable by such Bank (or its Lending Office) under this Agreement or under its Note with respect thereto, by an amount deemed by such Bank to be material, then, promptly upon demand by such Bank (and in any event within thirty (30) days after demand by such Bank) and delivery to the Borrower of the certificate required by clause (c) hereof (with a copy to the Agent), the Borrower shall pay to such Bank the additional amount or amounts as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall determine that any change after the Effective Date in any existing Applicable Law, rule or regulation or any new law, rule or regulation regarding liquidity or capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or any new request or directive of general applicability regarding liquidity or capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency issued, promulgated or enacted after the Effective Date, has or would have the effect of reducing the rate of return on capital of such Bank (or its parent corporation) as a consequence of such Bank’s Loans or obligations hereunder to a level below that which such Bank (or its parent corporation) could have achieved but for such law, change, request or directive (taking into consideration its policies with respect to liquidity and capital adequacy) by an amount deemed by such Bank to be material, then from time to time, promptly upon demand by such Bank (with a copy to the Agent) (and in any event within thirty (30) days after demand by such Bank) the Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank (or its parent corporation) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any event of which it has knowledge, occurring after the Effective Date, which will entitle such Bank to compensation pursuant to this Section and will designate a different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank claiming compensation under this Section and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder and the calculations used in determining such additional amount or amounts shall be conclusive in the absence of manifest error. In determining such amount, such Bank may use any reasonable averaging and attribution methods.
(d) For purposes of this Credit Agreement (including, without limitation, Section 8.03), the Dodd Frank Wall Street Reform and Consumer Protection Act, all requests, rules, guidelines or directives in connection therewith and all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or the United States financial regulatory authorities, shall be deemed to have been adopted and become effective after the Effective Date.
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Section 8.02 Inability to Determine Rates. Subject to Section 8.04, if, on or prior to the first day of any Interest Period for any SOFR Loan:
(a) the Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR cannot be determined pursuant to the definition thereof, or
(b) the Required Banks determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Banks of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Agent, the Agent will promptly so notify the Borrower and each Bank. Upon notice thereof by the Agent to the Borrower, any obligation of the Banks to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Agent (with respect to clause (b), at the instruction of the Required Banks) revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 8.06. Subject to Section 8.04, if the Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Agent without reference to clause (b) of the definition of Base Rate until the Agent revokes such determination.
Section 8.03 Illegality. If any future Applicable Law, rule, regulation, treaty or directive, or any change in any present or future Applicable Law, rule, regulation, treaty or directive, or any change in the interpretation or administration of any present or future Applicable Law, rule, regulation, treaty or directive by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank with any new directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for any to make, maintain or fund its SOFR Loans and such Bank shall so notify the Agent, the Agent shall forthwith give notice thereof to the Banks and the Borrower, whereupon until such Bank notifies the Borrower and the Agent that the circumstances giving rise to such suspension no longer exist, (a) the commitment of such Bank to make SOFR Loans or convert Base Rate Loans to SOFR Loans shall forthwith be suspended, and (b) such Bank’s Loans then outstanding as SOFR Loans, if any, shall be converted automatically to Base Rate Loans on the last day of the InterestPeriod applicable to such SOFR Loans or within such earlier period as may be required by law. Before giving any notice to the Agent pursuant to this Section, such Bank shall designate a different SOFR Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine that it may not lawfully continue to maintain and fund any of its outstanding SOFR Loans to maturity and shall so specify in such notice, the Borrower shall immediately prepay in full the then outstanding principal amount of each such SOFR Loan, together with accrued interest thereon and any amount payable by the Borrower pursuant to Section 8.06. Concurrently with prepaying each such SOFR Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount from such Bank (on which interest and principal shall be payable contemporaneously with the related SOFR Loans of the other Banks), and such Bank shall make such Base Rate Loan.
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Section 8.04 Benchmark Replacement Setting.
(a) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Banks comprising the Required Banks. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(b) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c) Notices; Standards for Decisions and Determinations. The Agent will promptly notify the Borrower and the Banks of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 8.04(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or, if applicable, any Bank (orgroup of Banks) pursuant to this Section 8.04, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 8.04.
(d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition of Interest Period (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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(e) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Loan of, conversion to, or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
Section 8.05 Replacement Banks. Upon (i) the election of any Bank to request reimbursement by the Borrower for amounts due under Section 8.01 or with respect to indemnification for any transfer taxes, documentary taxes, assessments or charges made by any governmental authority as provided in the first paragraph of Section 9.03, or (ii) the suspension of any Bank’s obligation to make, convert to or continue SOFR Loans (such Bank being herein called an “Affected Bank”), then, so long as such condition exists, the Borrower may, after the date 30 days after the date of such request or suspension, find a replacement Bank which shall be reasonably satisfactory to the Agent and the Borrower (a “Replacement Bank”) to assume the Affected Bank’s Commitment and other obligations hereunder and to purchase the Affected Bank’s Loans and other rights under this Agreement and the Notes held by such Affected Bank (all without recourse to or representation or warranty by, or expense to, the Affected Bank) for a purchase price equal to the aggregate principal amount of the outstanding Loans held by the Affected Bank plus all accrued but unpaid interest on such Loans and accrued but unpaid fees owing to the Affected Bank (and upon such assumption, purchase and substitution, and subject to the execution and delivery to the Agent by the Replacement Bank of documentation satisfactory to the Agent and compliance with the requirements of Section 9.06, the Replacement Bank shall succeed to the rights and obligations of the Affected Bank hereunder and under the Notes held by such Affected Bank), and (ii) pay to the Affected Bank all amounts payable to such Affected Bank under Section 8.06, calculated as if the purchase by the Replacement Bank constituted a mandatory prepayment of Loans by the Borrower, and (iii) pay to the Agent the administrative fee specified in Section 9.06(c) with respect to such assignment. Each Bank agrees that, should it be identified for replacement pursuant to this Section 8.05, it will promptly execute and deliver (against payment to such Bank of all sums owing to it under the Loan Documents, whether or not then due) all documents and instruments reasonably required by the Borrower to assign such Bank’s Loans and Commitment to the applicable Replacement Bank. In the event that the Borrower exercises its rights under this Section, the Affected Bank shall no longer be a party hereto or have any rights or obligations hereunder or under the Notes held by such Affected Bank; provided that the obligations of the Borrower to the Affected Bank under Sections 8.01 and 9.03 with respect to events occurring or obligations arising before or as a result of such replacement shall survive such exercise.
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Section 8.06 Indemnity. The Borrower agrees to indemnify each Bank and to hold each Bank harmless from and against any loss, cost or expense (including loss of anticipated profits) that such Bank may sustain or incur as a consequence of (a) default by the Borrower in payment of the principal amount of or any interest on any SOFR Loans as and when due and payable, including any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its SOFR Loans, (b) default by the Borrower in making a borrowing or conversion after the Borrower has given (or is deemed to have given) a Notice of Borrowing or a Notice of Conversion relating thereto in accordance with Section 2.0 or (c) the making of any payment of a SOFR Loan or the making of any conversion of any such Loan to a Base Rate Loan on a day that is not the last day of the applicable Interest Period with respect thereto, including interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain any such Loans.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices.
(a) All notices, requests, consents and other communications under the Loan Documents to any party hereto (each a “Notice”) shall be in writing (including facsimile transmission or similar writing) and shall be given to such party at its address or facsimile number set forth on Schedule 1 attached hereto or by approved electronic communication in accordance with Section 9.01(b). Each Notice shall be deemed to have been given when received. Notices delivered through electronic communications, to the extent provided in paragraph (b) below, shall be effective as provided in paragraph (c).
(b) Notices made by the Borrower consisting of requests for loans or notices of repayments hereunder or items referred to in Sections 5.01(a), (b), (c), (d), (e), (f), (g), and (h) hereof may be delivered or furnished by e mail (which in the case of Sections 5.01(a), (b) or (g) may consist of notice, including the applicable URL, that such items are available on an internet website) or other electronic communication (including internet or intranet websites) pursuant to procedures approved by the Agent, unless the Agent, in its discretion, has previously notified the Borrower otherwise. In furtherance of the foregoing, each Bank hereby agrees to notify the Agent in writing, on or before the date such Bank becomes a party to this Agreement, of such Bank’s e mail address to which a notice may be sent (and from time to time thereafter to ensure that the Agent has on record an effective e mail address for such Bank). Each of the Agent and the Borrower may, in its discretion, agree to accept other Notices to it under the Loan Documents by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular Notices. None of the Agent, any Bank, nor any of the directors, officers, employees, agents or Affiliates of the Agent or any Bank shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed through telecommunications, electronic or other information transmission systems in connection with the Loan Documents or the transactions contemplated hereby or thereby.
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(c) Unless the Agent otherwise prescribes, (i) Notices sent to an e-mail address shall be deemed to have been given when received by the Agent or any Bank, as applicable, and (ii) if agreed to pursuant to paragraph (b), above, financial information posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such Notice is available and identifying the website address therefor, provided that, for both clauses (i) and (ii) above, if such Notice is not sent during the normal business hours of the recipient, such Notice shall be deemed to have been sent at the opening of business on the next Domestic Business Day for the recipient.
(d) Any party hereto may change its address, facsimile number or e-mail address for Notices under the Loan Documents by notice to the other parties hereto.
(e) The Borrower hereby acknowledges that: (i) the Agent may make available to the Banks Specified Materials by posting some or all of the Specified Materials on an Electronic Platform approved by the Borrower, (ii) the distribution of materials and information through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with any such distribution, (iii) the Electronic Platform is provided and used on an “as is,” “as available” basis, and (iv) neither the Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness, sufficiency or sequencing of the Specified Materials posted on the Electronic Platform. The Agent, on behalf of itself and its Affiliates, expressly and specifically disclaims, with respect to the Electronic Platform, delays in posting or delivery, or problems accessing the Specified Materials posted on the Electronic Platform, and any liability for any losses, costs, expenses or liabilities that may be suffered or incurred in connection with the Electronic Platform. No representation or warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non infringement of third party rights or freedom from viruses or other code defects, is made by Agent or any of its Affiliates in connection with the Electronic Platform.
(f) Each Bank hereby agrees that notice to it in accordance with this Section 9.01 specifying that any Specified Materials have been posted to the Electronic Platform shall, for purposes of the Loan Documents, constitute effective delivery to such Bank of such Specified Materials.
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(g) Each Bank: (i) acknowledges that the Specified Materials, including information furnished to it by the Borrower or the Agent pursuant to, or in the course of administering, the Loan Documents, may include material, non public information concerning the Borrower or its securities, and (ii) confirms that: (A) it has developed compliance procedures regarding the use of material, non public information; and (B) it will handle such material, non public information in accordance with such procedures and Applicable Laws, including federal and state securities laws.
Section 9.02 No Waivers. No failure or delay by the Agent or any Bank in exercising any right, power or privilege hereunder or under any Notes shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall promptly pay (i) all reasonable out-of-pocket expenses of the Agent, including reasonable fees and disbursements of special counsel for the Agent, in connection with the preparation, negotiation and closing of this Agreement and the Loan Documents, the syndication of and the administration of the facility established hereby, any waiver or consent hereunder or any amendment hereof or thereof or any waiver of any Default or alleged Default, and any termination hereof or thereof and (ii) if a Default occurs, all reasonable out-of-pocket expenses incurred by the Agent and each Bank, including reasonable fees and disbursements of counsel (including reasonable allocated costs of in-house counsel), in connection with such Default and collection, bankruptcy, insolvency and other enforcement proceedings resulting therefrom. The Borrower shall indemnify each Bank against any transfer taxes, documentary taxes, assessments or charges made by any governmental authority by reason of the execution and delivery of this Agreement or the Notes.
(b) The Borrower agrees to indemnify the Agent, each Bank, and each of their affiliates, officers, directors and employees (each, a “Covered Person”) and hold each Covered Person harmless from and against any and all Liabilities which may be incurred by or asserted or awarded against such Covered Person, in each case arising out of or in connection with any investigative, administrative or judicial proceeding (whether or not such Covered Person shall be designated a party thereto) relating to or arising out of this Agreement or the Loan Documents or any actual or proposed use of proceeds of Loans hereunder, provided that no Covered Person shall have the right to be indemnified hereunder for Liabilities that are determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Covered Person’s gross negligence or willful misconduct.
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Section 9.04 Set Off. During the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Banks to the Borrower and any Collateral (as defined in the Security Agreement) in the possession of any such Bank may be applied to or set off by such Bank against the payment of the Obligations. Each of the Banks agrees with each other Bank that if such Bank shall receive from the Borrower whether by voluntary payment, exercise of the right of set off, counterclaim, cross action, or enforcement of a claim based on the Obligations owing to such Bank by proceedings against the Borrower at law or in equity or byproof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owing to such Bank any amount in excess of its ratable portion of the payments received by all of the Banks with respect to the Obligations owed to all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bank receiving in respect of the Obligations owing to it its proportionate payment thereof as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Bank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Section 9.05 Amendments and Waivers. Any provision of this Agreement or any of the other Loan Documents may be amended, waived, supplemented or otherwise modified if, but only if, contained in a written agreement signed by the Borrower and the Required Banks (and, if the rights or duties of the Agent are affected thereby, by the Agent); provided that no such agreement shall (i) increase the Commitment Amount of any Bank without the written consent of such Bank, (ii) reduce the principal amount of any Loan, or reduce the rate of any interest, or reduce any fees, payable under the Loan Documents, without the written consent of each Bank affected thereby thereof, (iii) postpone the Termination Date or the date of any payment for any Loan or any interest or any fees payable under the Loan Documents, or reduce the amount of, waive or excuse any such payment, or postpone the stated termination or expiration of the Aggregate Commitment Amount, without the written consent of each Bank affected thereby, change any provision hereof in a manner that would alter the pro rata sharing of payments required hereby or the pro rata reduction of Commitment Amounts required hereby, without the written consent of each Bank affected thereby, (v) change any of the provisions of this Section or the definition of the term “Required Banks” or any other provision hereof specifying the number or percentage of Banks required to waive, amend, supplement or otherwise modify any rights hereunder, (vi) change the currency in which Loans are to be made or payment under the Loan Documents is to be made, or add additional borrowers, in each case without the written consent of each Bank, or (vii) release all or substantially all of the Collateral (as defined in the Security Agreement) from the liens thereunder (except as may be expressly provided in the applicable Security Document), without the consent of each Bank, and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Agent without the prior written consent of the Agent. No delay or omission on the part of any Bank or any holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other rights of such Bank or such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of the same or any other right on any further occasion.
Section 9.06 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Borrower may not assign or otherwise transfer any of its rights under this Agreement without the prior written consent of all of the Banks (and any attempted assignment or transfer by the Borrower without such consent shall be null and void).
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(b) Any Bank may at any time grant to one or more commercial banks (each a “Participant”) participating interests in its Commitment or all of its Loans. In the event of anysuch grant by a Bank of a participating interest to a Participant, whether or not upon notice to the Borrower and the Agent, such Bank shall remain responsible for the performance of its obligations hereunder, and the Borrower and the Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder, including, without limitation, the right to approve any amendment, restatement, supplement or other modification or waiver of any provision of this Agreement; provided that such participation agreement may provide that such Bank will not agree to any amendment, restatement, supplement or other modification or waiver of this Agreement described in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) of Section 9.05 without the consent of the Participant. The Borrower agrees that each Participant shall, to the extent provided in its participation agreement, be entitled to the benefits of Article VIII with respect to its participating interest; provided that no Participant shall be entitled to receive an amount greater than its pro rata share of any amount the selling Bank would have received hereunder had no participation been sold. An assignment or other transfer which is not permitted by clause (c) or (d) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this clause (b).
(c) Subject to clause (f) below, any Bank may at any time assign to one or more financial institutions (each an “Assignee”) all, or a proportionate amount of at least $5,000,000 of all, of its rights and obligations under this Agreement and the Notes, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Acceptance (each an “Assignment and Acceptance”) in substantially the form of Exhibit E attached hereto executed by such Assignee and such transferor Bank, with, if no Event of Default has occurred and is continuing, the written consent of the Borrower, which consent shall not be unreasonably withheld or delayed, and of the Agent, which consent shall not be unreasonably withheld or delayed; provided that no such consent of the Borrower or the Agent shall be required if the Assignee is a Control Affiliate of the transferor Bank. Upon acceptance and recording of an Assignment and Acceptance pursuant to Section 9.06(h), from and after the effective date specified therein, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Bank under this Agreement and (B) the assigning Bank thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 8.01 and Section 9.03 hereof, as well as to any fees accrued for its account and not yet paid). Upon the consummation of any assignment pursuant to this clause (b), the transferor Bank, the Agent and the Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the Assignor and the Assignee. In connection with each such assignment, the transferor Bank shall pay to the Agent an administrative fee for processing such assignment in the amount of $3,500. If the Assignee is not incorporated under the laws of the United States of America or a state thereof, it shall, prior to the first date on which interest or fees are payable hereunder for its account, deliver to the Borrower and the Agent the tax forms required by Section 2.11.
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(d) Without notice to or consent of any Person, any Bank may at any time assign all or any portion of its rights under this Agreement, its Note, and the other Loan Documents to a Federal Reserve Bank. No such assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank’s rights shall be entitled to receive any greater payment under Section 8.01 than such Bank would have been entitled to receive with respect to the rights transferred, unless such transfer is made with the Borrower’s prior written consent.
(f) No Person may become an Assignee pursuant to clause (c) above if that Person is an Affiliate of the Borrower.
(g) The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in Boston, Massachusetts a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Banks, and the Commitment Amounts of, and principal amounts of the Loans owing to, each Bank pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Bank at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Bank and an assignee, an administrative questionnaire (in such form as supplied by the Agent) completed in respect of the assignee (unless the assignee shall already be a Bank hereunder), the administrative fee referred to in Section 9.06(c) and, if required, the written consent of the Borrower and the Agent to such assignment and any applicable tax forms, the Agent shall (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and (iii) revise Schedule 1 to reflect such Assignment and Acceptance and circulate such revised Schedule 1 to the Banks and the Borrower, which revised Schedule 1 shall be deemed to be a part hereof and shall be incorporated by reference herein. No assignment shall be effective unless it has been recorded in the Register as provided in this Section 9.06(h).
Section 9.07 Governing Law; Submission to Jurisdiction. This Agreement and each of the other loan documents are contracts under the laws of the Commonwealth of Massachusetts and shall for all purposes be construed in accordance with and governed by the laws of Commonwealth of Massachusetts, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. Each of the Borrower, the Banks and the Agent agrees that any suit for the enforcement of this agreement or any of the other Loan Documents or any other action brought by such person arising hereunder or in any way related to this agreement or any of the other Loan Documents whether sounding in contract, tort, equity or otherwise, shall be brought in the courts of the Commonwealth of Massachusetts or a federal court sitting therein, and consents to the exclusive jurisdiction of such court and the service of process in any suit being made upon such person by mail at the address specified in Section 9.01. Each of the Borrower, the Banks and the Agent hereby waives any objection that it may now or hereafter have to the venue of any suit brought in Boston, Massachusetts or any court sitting therein or that a suit brought therein is brought in an inconvenient court.
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Section 9.08 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Except to the extent prohibited by law, the Borrower hereby waives any right it may have to claim or recover in any litigation referred to in the preceding sentence any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages. The Borrower (a) certifies that no representative, agent or attorney of any Bank or the Agent has represented, expressly or otherwise, that such Bank or the Agent would not, in the event of litigation, seek to enforce the foregoing waivers and (b) acknowledges that the Agent and the Banks have been induced to enter into this Credit Agreement and the other Loan Documents to which it is a party by, among other things, the waivers and certifications contained herein.
Section 9.09 Confidential Material.
(a) Each Bank agrees that any information, documentation or materials provided by the Borrower or the Borrower’s Affiliates, employees, agents or representatives (“Representatives”) disclosing the portfolio holdings of the Borrower or disclosing other non- public information in relation to this Agreement or the other Loan Documents (“Confidential Material”), whether before or after the date of this Agreement, shall be treated confidentially, using the same degree of care that such Bank uses to protect its own similar material.
(b) Confidential Material may be disclosed to Representatives of each Bank in connection with the transactions contemplated herein or in connection with managing the relationship of such Bank or its Affiliates with the Borrower but shall not be disclosed to any third party and may not be used for purposes of buying or selling securities, including shares issued by the Borrower; provided, however, that the Banks may disclose Confidential Material to (i) the Federal Reserve Board pursuant to applicable rules and regulations promulgated by the Federal Reserve Board (which, as of the Effective Date, require a filing of a list of all Margin Stock which directly or indirectly secures a Loan), (ii) the extent required by statute, rule, regulation or judicial process, (iii) counsel for any of the Banks or the Agent in connection with this Agreement or any of the other Loan Documents, (iv) bank examiners, auditors and accountants, (v) on a confidential basis, to service providers for each of the Agent, Bank and their respective Affiliates, and (vi) any Assignee or Participant (or prospective Assignee or Participant) as long as such Assignee or Participant (or prospective Assignee or Participant) first agrees to be bound by the provisions of this Section 9.09. Notwithstanding anything to the contrary contained in this Section, any information that would, but for this sentence, constitute Confidential Material (other than the Pricing Procedures) shall cease to be Confidential Material after the second anniversary of the date such information was first received by the Agent or any Bank.
Each Bank agrees to promptly provide such information as is reasonably requested by the Borrower in order for the Borrower to monitor (as required by Applicable Law) whether the Bank’s use of Confidential Material complies with this Section 9.09.
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Section 9.10 USA Patriot Act. Each Bank that is subject to the Patriot Act (as hereinafter defined) and the Agent (for itself and not on behalf of any Bank) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107- 56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Bank or the Agent, as applicable, to identify the Borrower in accordance with the Patriot Act.
Section 9.11 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts that are treated as interest on such Loan under Applicable Law (collectively the “charges”), shall exceed the maximum lawful rate (the “maximum rate”) that may be contracted for, charged, taken, received or reserved by the Bank holding such Loan in accordance with Applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all of the charges payable in respect thereof, shall be limited to the maximum rate and, to the extent lawful, the interest and the charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated, and the interest and the charges payable to such Bank in respect of other Loans or periods shall be increased (but not above the maximum rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Bank.
Section 9.12 Survival. The provisions of Sections 7.05, 9.03 and 9.09 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or other termination of the Commitments or the termination of any Loan Document or any provision thereof.
Section 9.13 Miscellaneous. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement and each of the other Loan Documents constitute the entire agreement and understanding among the parties hereto and supersede any and all prior agreements and understandings, oral or written, relating to the subject matter hereof. The provisions of this Agreement are severable and if any one clause or provision hereof shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction, and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision of this Agreement in any jurisdiction.
Section 9.14 Limitation on Liability. Notwithstanding anything to the contrary contained in the Loan Documents (a) neither any of the trustees of the Borrower (collectively, the “Trustees”) nor any shareholders of the Borrower (collectively the “Shareholders”) shall have any personal liability whatsoever to any of the Banks or the Agent under any of the Loan Documents, (b) the Banks and the Agent shall look solely to the assets of the Borrower for the payment of any debt, damage, judgment or decree, or for any money that may otherwise become due or payable to any of them under any of the Loan Documents, and (c) all dealings, undertakings and obligations of the Trustees and/or the Shareholders under the Loan Documents shall be deemed to have been made subject to the foregoing limitations; provided however that nothing contained herein shall limit, restrict, prevent or otherwise prohibit the Agent or any Bank from pursuing any claim or cause of action which it may now or hereafter have against any Trustee or Shareholder for fraud, misrepresentation of any material fact or misappropriation of funds or assets.
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Section 9.15 Acknowledgement 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 Affected 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 the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
| (b) | the effects of any Bail-in Action on any such liability, including, if applicable |
| (i) | a reduction in full or in part or cancellation of any such liability; |
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
Section 9.16 Certain ERISA Matters.
(a) Each Bank (x) represents and warrants, as of the date such Person became a Bank party hereto, to, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of the Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:
(i) such Bank is not using “plan assets” (within the meaning Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Bank’s entrance into, participation in, administration of and performance of the Loans or, the Commitments or this Agreement,
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(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Bank is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Agent and such Bank.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Bank further (x) represents and warrants, as of the date such Person became a Bank party hereto, to, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Agent and not, for the avoidance of doubt, to or for the benefit of any Borrower, that the Agent is not a fiduciary with respect to the assets of such Bank involved in such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
(c) For purposes of this Section 9.16, the following defined terms when used herein have the following meanings:
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
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Section 9.17 Acknowledgement Regarding any Supported QFCs. To the extent that any Loan Document (i) constitutes a QFC (such Loan Document, a “Loan Document QFC”), or (ii) provides support, through a guarantee or otherwise, for any Loan Document QFC, any Financial Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that such Loan Document and any Supported QFC may in fact be stated to be governed by the laws of the Commonwealth of Massachusetts and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under any Loan Document that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and such Loan Document were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Delinquent Bank shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 9.17, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[the remainder of this page has been intentionally left blank.]
| 68 |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
EATON VANCE SENIOR INCOME TRUST
| By: | /s/ James F. Kirchner |
| Name: | James F. Kirchner |
| Title: | Treasurer |
STATE STREET BANK AND TRUST
COMPANY, as a Bank and as the Agent
| By: | /s/ Christopher Ducar |
| Name: | Christopher Ducar |
| Title: | Vice President |
Eaton Vance Senior Income Trust - Credit Agreement
| 69 |
SCHEDULE 1
Addresses for Notices, Lending Offices, Commitment Amounts and Commitment Percentages
BORROWER:
EATON VANCE SENIOR INCOME TRUST
Address for Notices:
Eaton Vance Management
Two International Place
Boston, Massachusetts 02110
Attn: Michael Botthof
mbotthof@eatonvance.com
617-672-8829 (phone)
617-672-1594 (fax)
| Schedule 1-1 |
| BANKS | COMMITMENT | COMMITMENT |
|
AMOUNT
|
PERCENTAGE | |
| $190,000,000 | 100% |
STATE STREET BANK AND TRUST COMPANY
Lending Office and Office for Notices to the Agent for Borrowings and Payments:
Prior to May 15, 2023:
State Street Bank and Trust Company
State Street Financial Center
Loan Servicing Unit SFC0310
One Lincoln Street
Boston, MA 02111
Attn: Christopher Hickey
Tel: (617) 662-8577
Fax: (617) 988-6677
Email: LoanOps- LSUWorkflow@StateStreet.com
Alternate Contact:
Attn: Peter Connolly
Tel: (617) 662-8588
Fax: (617) 988-6677
Email: LoanOps- LSUWorkflow@StateStreet.com
After May 15, 2023
State Street Bank and Trust Company
Loan Servicing Unit
One Congress Street
Boston, MA 02114
Attn: Christopher Hickey
Tel: (617) 662-8577
Fax: (617) 988-6677
Email: LoanOps- LSUWorkflow@StateStreet.com
Alternate Contact:
Attn: Peter Connolly
Tel: (617) 662-8588
Fax: (617) 988-6677
Email: LoanOps-LSUWorkflow@StateStreet.com
| Schedule 1-2 |
Office for all Other Notices:
Prior to May 15, 2023
State Street Bank and Trust Company
State Street Financial Center
Fund Finance
M/S SFC0310
One Lincoln Street
Boston, MA 02111
Attn: Christopher Ducar, Vice President
Tel: (617) 662-8630
E-mail: CMDucar@StateStreet.com
After May 15, 2023
State Street Bank and Trust Company
Fund Finance
One Congress Street
Boston, MA 02114
Attn: Christopher Ducar, Vice President
Tel: (617) 662-8630
E-mail: CMDucar@StateStreet.com
| Schedule 1-3 |
EXHIBIT A
FORM OF NOTE
| U.S. $[__] | [__], 20_ |
FOR VALUE RECEIVED, EATON VANCE SENIOR INCOME TRUST, a Massachusetts business trust (the “Borrower”), hereby promises to pay to [__] (the “Bank”) at the office of the Agent (as defined below) at One Congress Street, Boston, MA 02114:
(a) prior to or on the Termination Date (as defined in the Credit Agreement referred to below) the principal amount of [__] dollars (U.S.$[__]) or, if less, the aggregate unpaid principal amount of Loans advanced by the Bank to the Borrower pursuant to the Credit Agreement, dated as of May 4, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the Bank, other lending institutions party thereto and State Street Bank and Trust Company, as agent (the “Agent”);
(b) without duplication, the principal outstanding hereunder from time to time at the times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time outstanding at the times and at the rates provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by the Borrower in accordance with the terms of the Credit Agreement. The Bank and any holder hereof are entitled to the benefits of the Credit Agreement and the other Loan Documents, and may enforce the agreements of the Borrower contained therein, and any holder hereof may exercise the respective remedies provided for thereby or otherwise available in respect thereof, all in accordance with the respective terms thereof. All capitalized terms used in this Note and not otherwise defined herein shall have the same meanings herein as in the Credit Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be made, at or about the date of each Loan or at the time of receipt of each payment of principal of this Note, an appropriate notation on the grid attached to this Note, or the continuation of such grid, or any other similar record, including computer records, reflecting the making of such Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Loans set forth on the grid attached to this Note, or the continuation of such grid, or any other similar record, including computer records, maintained by the Bank with respect to any Loans shall be prima facie evidence of the principal amount thereof owing and unpaid to the Bank, but the failure to record, or any error in so recording, any such amount on any such grid, continuation or other record shall not limit or otherwise affect the obligation of the Borrower hereunder or under the Credit Agreement to make payments of principal of and interest on this Note when due.
The Borrower has the right in certain circumstances and the obligation under certain other circumstances to prepay the whole or part of the principal of this Note on the terms and conditions specified in the Credit Agreement.
| Exhibit A-1 |
If any one or more Events of Default shall occur and be continuing, the entire unpaid principal amount of this Note and all of the unpaid interest accrued thereon may become or be declared due and payable in the manner and with the effect provided in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other rights of the Bank or such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of the same or any other right on any further occasion.
The Borrower and every endorser and guarantor of this Note or the obligation represented hereby waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note, and assents to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral and to the addition or release of any other party or person primarily or secondarily liable.
This Note is a contract under the laws of the Commonwealth of Massachusetts and shall for all purposes be construed in accordance with and governed by the laws of Commonwealth of Massachusetts, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. Each the Borrower and the Bank agrees that any suit for the enforcement of this Note or any other action brought by such person arising hereunder or in any way related to this Note whether sounding in contract, tort, equity or otherwise, shall be brought in the courts of the Commonwealth of Massachusetts or a federal court sitting therein, and consents to the exclusive jurisdiction of such court and the service of process in any suit being made upon such person by mail at the address specified in Section 9.01 of the Credit Agreement. Each of the Borrower and the Bank hereby waives any objection that it may now or hereafter have to the venue of any suit brought in Boston, Massachusetts or any court sitting therein or that a suit brought therein is brought in an inconvenient court.
| Exhibit A-2 |
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed as a document under seal in its name by its duly authorized officer as of the day and year first above written.
EATON VANCE SENIOR INCOME TRUST
| By: | |
| Name: | |
| Title: |
| Exhibit A-3 |
| Date | Amount of Loan | Type of Loan | Amount of Principal Paid or Prepaid | Balance of Principal Unpaid | Notation Made By: |
| Exhibit A-4 |
EXHIBIT B
FORM OF
NOTICE OF BORROWING
DATE: [Insert Date] (the “Notice Date”)
TO: STATE STREET BANK AND TRUST COMPANY, as Agent
[Insert proper address(es) per the Credit Agreement]
FROM: [__]
Reference is hereby made to that certain Credit Agreement, dated as of May 4, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among EATON VANCE SENIOR INCOME TRUST, a Massachusetts business trust (the “Borrower”), the Banks and other lending institutions party thereto, and State Street Bank and Trust Company, as Agent. Capitalized terms which are used herein without definition and which are defined in the Credit Agreement shall have the same meanings herein as in the Credit Agreement.
Pursuant to Section 2.02(a) of the Credit Agreement, the Borrower hereby requests the Loan described below:
Type of Loan: [Base
Rate][SOFR]
[Domestic][U.S. Government Securities] Business Day of proposed borrowing:
[Insert Date] (the “Proposed Borrowing Date”)
[Interest Period: one month]
Amount of Loan requested hereby $[__]
The undersigned hereby certifies as follows:
| (a) | the Aggregate Commitment Amount (after giving effect to each reduction thereof that has been requested by the Borrower, if any, but which remains pending as of 1:00 p.m. (Boston, Massachusetts time) on the Notice Date (the “Notice Time”)) (the “Applicable Aggregate Commitment Amount”) is $ [__] |
| (b) | as of the close of business on the Domestic Business Day immediately preceding the Notice Date (the “Measurement Time”), the Applicable Maximum Amount (per Annex 1 hereto) (the “Applicable Maximum Amount”) is $ [__] |
| (c) | the Pro forma Outstanding Amount (as set defined on Annex 1 hereto) is less than the Applicable Aggregate Commitment Amount; |
| Exhibit B-1 |
| (d) | the Applicable Total Debt (as defined on Annex 1 hereto) does not exceed the Applicable Maximum Amount; |
| (e) | on the Proposed Borrowing Date (immediately after giving effect to all proposed Loans referred to in B and C on Annex 1 hereto), the sum of the outstanding principal balance of all Loans plus all other Debt of the Borrower will not exceed the Maximum Amount then in effect; |
| (f) | each of the representations and warranties of the Borrower set out in the Loan Documents remains true and accurate as of the Notice Time and will be true and accurate on the Proposed Borrowing Date immediately after giving effect to the borrowing of the Loan(s) requested hereby; |
| (g) | no Default has occurred and is continuing; and |
| (h) | immediately after giving effect to the borrowing herein requested on the Proposed Borrowing Date, no Default shall exist. |
EATON VANCE SENIOR INCOME TRUST
| By: | |
| Name: | |
| Title: |
| Exhibit B-2 |
Annex 1 to
Notice of Borrowing
| A. | The aggregate outstanding principal balance of all Loans as of the Notice Time $ [__] |
| B. | The amount of the Loan requested hereby $ [__] |
| C. | The amount of all Loans (without duplication of B immediately above) requested the disbursement of which is pending as of the Notice Time $ [__] |
| D. | A + B + C (the “Pro forma Outstanding Amount”) $ [__] |
| E. | All other Debt $ [__] |
| F. | Sum of D and E (“Applicable Total Debt”) $ [__] |
| G. | The maximum amount of Debt that the Borrower would be permitted to incur pursuant to Applicable Law (as defined in the Credit Agreement), including the Investment Company Act (as defined in the Credit Agreement) $ [__] |
| H. | The maximum amount of Debt that the Borrower would be permitted to incur pursuant to the limitations on borrowings in its Prospectus (as defined in the Credit Agreement) and the Investment Policies and Restrictions (as defined in the Credit Agreement) $ [__] |
| I. | In the event that the Borrower shall have entered into any agreement(s) with any Authority (as defined in the Credit Agreement) limiting the amount of Debt that the Borrower may create, incur, assume or suffer to exist,1 the maximum amount of Debt that the Borrower would be permitted to create, incur, assume or suffer to exist pursuant to such agreements $ [__] |
| J. | The maximum amount of Debt that the Borrower would be permitted to incur without violating Section 5.18 of the Credit Agreement $ [__] |
| K. | The least of G, H, I and J (the “Applicable Maximum Amount”)2 $ [__] |
1 If there are no such agreements, enter N/A.
2 If I is completed as “N/A”, ignore it for purposes of these calculations.
| Exhibit B-3 |
EXHIBIT C
FORM OF
NOTICE OF CONVERSION
| TO: | STATE STREET BANK AND TRUST COMPANY, as Agent [Insert proper address(es) per the Credit Agreement] |
FROM: [__]
Reference is hereby made to that certain Credit Agreement, dated as of May 4, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among EATON VANCE SENIOR INCOME TRUST, a Massachusetts business trust, the Banks and other lending institutions party thereto, and State Street Bank and Trust Company, as Agent. Capitalized terms which are used herein without definition and which are defined in the Credit Agreement shall have the same meanings herein as in the Credit Agreement.
Pursuant to Section 2.02(b) of the Credit Agreement, please convert or continue the following Loan as set forth below:
| Existing Loan | New Loan | |||||||||
| Type | Amount | Continue As /Convert to | Amount | Date* | Interest Period | |||||
| SOFR | $ [__] | SOFR | $ [__] | [__] | [__] | |||||
| Base Rate | $ [__] | Base Rate | $ [__] | [__] | N/A | |||||
| If a SOFR Loan, last day of current | ||||||||||
| Interest Period is: | [__] | |||||||||
The undersigned hereby certifies that no Event of Default has occurred and is continuing or would occur immediately after giving effect to the conversion or continuation of the Loan(s) herein requested.
EATON VANCE SENIOR INCOME TRUST
| By: | |
| Name: | |
| Title: |
*Must be a Business Day or a U.S. Government Securities Business Day, as applicable.
| Exhibit C-1 |
EXHIBIT D
FORM OF
BORROWING BASE REPORT
Date [__]
[Address(es) (a Borrowing Base Report that accompanies a Notice of Borrowing need only be sent to the Agent, while periodic Borrowing Base Reports need to be sent to the Agent and each Bank)]
Attention:
Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement, dated as of May 4, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Eaton Vance Senior Income Trust, a Massachusetts business trust (the “Borrower”), the Banks party thereto and State Street Bank and Trust Company, as Agent for the Banks. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.
This Borrowing Base Report is delivered to you pursuant to [Section 2.02(a)(Y)1 or Section 5.01(c)] of the Credit Agreement. The undersigned hereby certifies to you as follows:
| (a) | as of the close of business on [Date]2 (the “Notice Time”), the Borrowing Base was $ [__] (the “Applicable Borrowing Base”), |
| (b) | Annex 1 attached hereto is a true and accurate detailed calculation of the Borrowing Base as of the Notice Time, |
| (c) | the aggregate outstanding principal balance of the Loans [[immediately AFTER giving effect to the making of the Loans requested in the Notice of Borrowing dated __3] or [at the Notice Time4]]: $ [__] (the “Applicable Loan Amount”), |
| 1 | If the Borrower has delivered a Borrowing Base Report pursuant to the terms of Section 5.01(c) and the date for delivery of a new Borrowing Base Report in connection with the next succeeding Calculation Date (as defined in Section 5.01(c)) has not yet occurred and will not occur prior to the date of the proposed borrowing then no New Loan Borrowing Base Report shall be required in connection with such proposed borrowing. |
| 2 | For a Borrowing Base Report delivered pursuant to Section 2.02(a)(Y) of the Credit Agreement, this date should be the Domestic Business Day immediately preceding the proposed borrowing date related thereto. For a Borrowing Base Report delivered pursuant to Section 5.01(c) of the Credit Agreement, this date should be the last Domestic Business Day of the immediately preceding calendar month. |
3 For use when borrowing.
4 For periodic reporting.
| Exhibit D-1 |
| (d) | the Applicable Borrowing Base [is less than][equals][exceeds] the Applicable Loan Amount, |
| (e) | as of the Notice Time, (i) Adjusted Net Assets was $ [__], (ii) the aggregate amount of Total Liabilities that are Senior Securities Representing Indebtedness was $ [__], (iii) the percentage obtained by dividing Senior Securities Representing Indebtedness by Adjusted Net Assets was [__]%, |
| (f) | as of the Notice Time, (i) the Preferred Adjusted Net Assets was $ [__], (ii) the aggregate |
amount of the liquidation preference of Borrower’s Senior Securities was $ [__], (iii) the aggregate amount of Borrower’s Senior Securities Representing Indebtedness was $ [__], and (iv) the Preferred Asset Coverage was [__]%,
| (g) | Annex 2 attached hereto is a true and accurate detailed calculations of the Adjusted Net Assets, Preferred Adjusted Net Assets, Preferred Asset Coverage, the liquidation preference of Borrower’s Senior Securities, and the amount of Borrower’s Senior Securities Representing Indebtedness, each as of the Notice Time, and |
| (h) | as of the date hereof [no Default has occurred and is continuing][the following Default(s) have occurred and is/are continuing: [__], and the Borrower has taken/is taking the following actions with respect thereto: |
$ [__].
EATON VANCE SENIOR INCOME TRUST
| By: | |
| Name: | |
| Title: |
| Exhibit D-2 |
Annex 1 to
Borrowing Base Report
[This Annex 1 must be in the following form, or such other form as shall have been agreed to by the Borrower and the Agent]
| A. | Asset Value (as defined in the Credit Agreement) of all Tier 1 Investments (as |
defined in the Credit Agreement) $ [__]
| B. | Asset Value of all Tier 2 Investments (as defined in the Credit Agreement) $ [__] |
| C. | Asset Value of all Tier 3 Investments (as defined in the Credit Agreement) $ [__] |
| D. | Asset Value of all Tier 4 Investments (as defined in the Credit Agreement) $ [__] |
E. 90% of A: $ [__]5
F. 80% of B: $ [__]6
G. 70% of C: $ [__]7
H. 60% of D: $ [__]8
| I. | Sum of E + F + G + H $ [__] |
| J. | Amount of I attributable to a single issuer (excluding (i) all GSEs (as defined in the Credit Agreement) that, as of the date of determination thereof, have outstanding any Asset-backed Agency Security that would qualify as a Tier 1 Investment, and (ii) the Government of the United States): $ [__] |
K. Percentage equal to J/I [__]%
L. If K is greater than 5%, amount which, if subtracted from J, would cause K to be 5% $ [__]
| M. | I minus L $ [__]9 |
| N. | Amount of I attributable to all Eligible Investments issued by an issuer domiciled in any Emerging Market Nation: $ [__] |
O. Percentage equal to N/I [__]%
P. If O is greater than 5%, amount which, if subtracted from N, would cause O to be 5% $ [__]
| Q. | M minus P $ [__]10 |
| R. | Amount of I attributable to the aggregate value of (i) Eligible Foreign Government Securities issued by, and (ii) Eligible Senior Loans and Eligible Foreign Debt Securities issued by issuers domiciled in, Eligible OECD Member Nations (other than the United States) $ [__] |
5 Clause (i) of Borrowing Base definition
6 Clause (ii) of Borrowing Base definition
7 Clause (iii) of Borrowing Base definition
8 Clause (iv) of Borrowing Base definition
9 Borrowing Base after adjustment referred to in clause (1) of Borrowing Base definition
10 Borrowing Base after adjustment referred to in clause (2) of Borrowing Base definition
| Exhibit D-3 |
| S. | Percentage equal to R/I [__]% |
| T. | If S is greater than 20%, amount which, if subtracted from R, would cause S to equal 20% $ [__] |
| U.Q | minus T $ [__] 11 |
| V.Amount | of I attributable to the aggregate value of Eligible Investments in any single industry $ [__] |
| W. | Percentage equal to V/I [__]% |
| X.If | W is greater than 15%, amount which, if subtracted from V, would cause W to equal 15% $ [__] |
Y.U minus X $ [__]12
| Z. | Amount of I attributable to Eligible Senior Loans (as defined in the Credit Agreement) in the form of participation interests: $ [__] |
| AA. | Percentage equal to Z/I [__]% |
| BB. | If AA is greater than 10%, amount which, if subtracted from Z, would cause AA to equal 10% $ [__] |
CC. Y minus BB $ [__]13
| DD. | Amount of I attributable to Eligible Senior Loans (other than Eligible Senior Loans to the extent included in BB) in the form of participation interests from the same selling institution: $ [__] |
| EE. | Percentage equal to DD/I [__]% |
| FF. | If EE is greater than 5%, amount which, if subtracted from DD, would cause EE to be 5% $ [__] |
| GG. | CC minus FF $ [__]14 |
| HH. | Amount of I attributable to Eligible Senior Loans (other than Eligible Senior Loans to the extent included in BB or FF) which are part of a syndicated credit facility in which the sum of the aggregate revolving loan commitment amount plus the aggregate outstanding principal amount of all loans (other than revolving loans) under such facility on the origination date of such credit facility is less than $100,000,000: $ [__] |
II. Percentage equal to HH/I: [__]%
| JJ | If II is greater than 5%, amount which, if subtracted from HH, would cause II to be 5%$ [__] |
1 Borrowing Base after adjustment referred to in clause (3) of Borrowing Base definition
12 Borrowing Base after adjustment referred to in clause (4) of Borrowing Base definition
13 Borrowing Base after adjustment referred to in clause (5) of Borrowing Base definition
14 Borrowing Base after adjustment referred to in clause (6) of Borrowing Base definition
| Exhibit D-4 |
KK. GG minus JJ: $ [__]15
| LL. | Amount of I attributable to Excess Value $ [__] |
| MM. | KK minus LL (the “Borrowing Base”): $ [__]16 |
15 Borrowing Base after adjustment referred to in clause (7) of Borrowing Base definition
16 Borrowing Base after adjustment referred to in clause (8) of Borrowing Base definition
| Exhibit D-5 |
EXHIBIT E
FORM OF
ASSIGNMENT AND ACCEPTANCE
Date [__]
Reference is made to the Credit Agreement, dated as of May 4, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among EATON VANCE SENIOR INCOME TRUST, a Massachusetts business trust (the “Borrower”), the Banks and other lending institutions party thereto and State Street Bank and Trust Company, as Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
[__] (the “Assignor”) and [__] (the “Assignee”) hereby agree as follows:
§1. Assignors. Subject to the terms and conditions of this Assignment and Acceptance, the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes without recourse to the Assignor, a [$__] interest in and to the rights, benefits, indemnities and obligations of the Assignor under the Credit Agreement equal to [__%] in respect of the Assignor’s Commitment Amount immediately prior to the Effective Date (as hereinafter defined).
§2. Assignor’s Representations. The Assignor (a) represents and warrants that (i) it is legally authorized to enter into this Assignment and Acceptance, (ii) as of the date hereof, its Commitment Amount is [$__], its Commitment Percentage is [__%], the aggregate outstanding principal balance of its Loans equals [$__], (in each case before giving effect to the assignment contemplated hereby and without giving effect to any contemplated assignments which have not yet become effective), and (iii) immediately after giving effect to all assignments which have not yet become effective, the Assignor’s Commitment Percentage will be sufficient to give effect to this Assignment and Acceptance, (b) makes no representation or warranty, express or implied, and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or any of the other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any of the other Loan Documents or any other instrument or document furnished pursuant thereto or the attachment, perfection or priority of any security interest or mortgage, other than that it is the legal and beneficial owner of the interest being assigned by it hereunder free and clear of any claim or encumbrance; (c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Person primarily or secondarily liable in respect of any of the Loans, or the performance or observance by the Borrower or any other Person primarily or secondarily liable in respect of any of the Loans of any of its obligations under the Credit Agreement or any of the other Loan Documents or any other instrument or document delivered or executed pursuant thereto; and (d) attaches hereto the Note delivered to it under the Credit Agreement.
| Exhibit E-1 |
The Assignor requests that the Borrower exchange the Assignor’s Note for new Notes payable to the Assignor and the Assignee as follows:
| Notes Payable to | Amount of Note |
| Assignor | $ |
| Assignee | $ |
§3. Assignee’s Representations. The Assignee (a) represents and warrants that (i) it is duly and legally authorized to enter into this Assignment and Acceptance, (ii) the execution, delivery and performance of this Assignment and Acceptance do not conflict with any provision of law or of the charter or by-laws of the Assignee, or of any agreement binding on the Assignee, (iii) all acts, conditions and things required to be done and performed and to have occurred prior to the execution, delivery and performance of this Assignment and Acceptance, and to render the same the legal, valid and binding obligation of the Assignee, enforceable against it in accordance with its terms, have been done and performed and have occurred in due and strict compliance with all applicable laws; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 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; (c) agrees that it will, independently and without reliance upon the Assignor, the Agent, or any Bank 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 Credit Agreement; (d) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto; [and] (e) agrees that it will perform in accordance with their terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank[; and (f) attaches hereto the forms required to be delivered by it pursuant to Section 2.11 of the Credit Agreement].
§4. Effective Date. The effective date for this Assignment and Acceptance shall be [__] [such date to be no earlier than the third Domestic Business Day after the date that a fully signed copy hereof shall have been delivered to the Agent] (the “Effective Date”). Following the execution of this Assignment and Acceptance each party hereto shall deliver its duly executed counterpart hereof to the Agent for consent by the Agent (and the Borrower, if required by the Credit Agreement) and recording in the Register.
§5. Rights Under Credit Agreement. Upon such recording in the Register, from and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Bank thereunder, and (b) the Assignor shall, with respect to that portion of its interest under the Credit Agreement assigned hereunder, relinquish its rights and be released from its obligations under the Credit Agreement other than its obligations, if any, under Section 9.09 thereof; provided, however, that the Assignor shall retain its rights to be indemnified pursuant to Section 9.03 of the Credit Agreement with respect to any claims or actions arising prior to the Effective Date.
| Exhibit E-2 |
§6. Payments. Upon such recording in the Register, from and after the Effective Date, the Agent shall make all payments in respect of the rights and interests assigned hereby (including payments of principal, interest, fees and other amounts) to the Assignee. The Assignor and the Assignee shall make any appropriate adjustments in payments for periods prior to the Effective Date by the Agent or with respect to the making of this assignment directly between themselves.
§7. Governing Law. This Agreement is a contract under the laws of the Commonwealth of Massachusetts and shall for all purposes be construed in accordance with and governed by the laws of Commonwealth of Massachusetts, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction.
§8. Counterparts. This Assignment and Acceptance may be executed in any number of counterparts which shall together constitute but one and the same agreement.
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| Exhibit E-3 |
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned has caused this Assignment and Acceptance to be executed on its behalf by its officer thereunto duly authorized, as of the date first above written.
[ASSIGNOR]
| By: | |
| Name: | |
| Title: |
[ASSIGNEE]
| By: | |
| Name: | |
| Title: |
[CONSENTED TO:]
EATON VANCE SENIOR INCOME TRUST
| By: | |
| Name: | |
| Title: |
[STATE STREET BANK AND TRUST
COMPANY, as Agent
| By: | |
| Name: | |
| Title: |
| Exhibit E-4 |