8-K
Main Street Capital CORP (MAIN)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________________________________________________
FORM 8-K
__________________________________________________________________________
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 24, 2025
__________________________________________________________________________
Main Street Capital Corporation
(Exact name of registrant as specified in its charter)
| Maryland | 814-00746 | 41-2230745 | |||
|---|---|---|---|---|---|
| (State or other jurisdiction<br><br>of incorporation) | (Commission File Number) | (IRS Employer Identification No.) | 1300 Post Oak Boulevard, 8th Floor, Houston, Texas | 77056 | |
| --- | --- | ||||
| (Address of principal executive offices) | (Zip Code) |
Registrant's telephone number, including area code: (713) 350-6000
Not Applicable
___________________________________________________________________________________
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions:
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol | Name of each exchange on which registered |
|---|---|---|
| Common Stock, par value $0.01 per share | MAIN | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act
of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition
period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the
Exchange Act. o
Item 1.01.Entry into a Material Definitive Agreement.
On April 24, 2025, Main Street Capital Corporation (“Main Street”), through its wholly-owned subsidiary, MSCC Funding
I, LLC (“MSCC Funding”), entered into that certain Third Amendment (the “Amendment”) to the Revolving Credit and
Security Agreement dated as of November 22, 2022 (as amended, supplemented and restated prior to the Amendment, the
“Credit Amendment” and, as amended by the Amendment, the “SPV Facility”), among MSCC Funding, as borrower, the
lenders from time to time party thereto, Main Street, as collateral manager, Truist Bank (“Truist”), acting as administrative
agent and swingline lender, Citibank, N.A., acting as collateral agent, document custodian and custodian, Virtus Group,
L.P., as collateral administrator, and Western Alliance Trust Company, N.A., as successor collateral agent, successor
document custodian, successor custodian and successor collateral administrator.
The Amendment amended the Credit Agreement as follows: (i) decreased the interest rate to one-month term Secured
Overnight Financing Rate plus an applicable margin of (a) 1.95% during the revolving period (from 2.35%), (b) 2.075%
for the first year following the end of the revolving period (from 2.475%) and (c) 2.20% for the second year following the
end of the revolving period (from 2.60%), (ii) extended the revolving period from through September 2027 to through
September 2028, (iii) extended the final maturity date from September 2029 to September 2030, (iv) decreased the unused
fee to 0.40% (from 0.50%) on the unused amount up to 50% (from 35%) of the commitment amount and (v) other changes
as described in the Amendment.
Affiliates of Truist and certain other lenders under the SPV Facility from time to time receive customary fees and expenses
in the performance of investment banking, financial advisory or other services for Main Street.
The above summary is not complete and is qualified in its entirety to the full text of the Amendment, which is attached
hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
The disclosure set forth above under Item 1.01 is incorporated by reference herein.
Item 8.01. Other Events.
On April 24, 2025, Main Street issued a press release related to the Amendment. A copy of such press release is attached
hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly authorized.
| Main Street Capital Corporation | ||
|---|---|---|
| Date: April 24, 2025 | By: | /s/ Jason B. Beauvais |
| Name: Jason B. Beauvais | ||
| Title: General Counsel |
MAIN SPV Facility - Third Amendment - Conformed Agreement - EX. 10.1 Exhibit 10.1
EXECUTION COPY
THIRD AMENDMENT TO CREDIT AGREEMENT
(MSCC FUNDING I, LLC)
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of April 24, 2025
(this “Amendment”), is entered into by and among MSCC FUNDING I, LLC, a Delaware limited
liability company, as borrower (the “Borrower”), MAIN STREET CAPITAL CORPORATION, a
Maryland corporation, as collateral manager (the “Collateral Manager”), VIRTUS GROUP, LP
(“Virtus”), as collateral administrator (the “Collateral Administrator”), CITIBANK, N.A.
(“Citibank”), as collateral agent (in such capacity, the “Collateral Agent”), document custodian (in
such capacity, the “Document Custodian”), and custodian (in such capacity, the “Custodian”), the
Lenders party hereto, and TRUIST BANK, as administrative agent (in such capacity, the
“Administrative Agent”) and swingline lender (in such capacity, the “Swingline Lender”).
RECITALS
WHEREAS, the above named parties have entered into that certain Revolving Credit and
Security Agreement, dated as of November 22, 2022 (as amended, restated, supplemented or
modified through the date hereof, the “Agreement”), by and among the Borrower, the Collateral
Manager, the Collateral Administrator, each of the Lenders from time to time party thereto, the
Administrative Agent, the Swingline Lender, the Collateral Agent, the Document Custodian and
the Custodian; and
WHEREAS, pursuant to and in accordance with Section 16.01 of the Agreement, the
parties hereto desire to amend the Agreement in certain respects as provided herein.
WHEREAS, each Lender has consented to this Amendment.
WHEREAS, Citibank intends to resign in its capacities as Collateral Agent, Document
Custodian and Custodian under the Agreement, and Virtus intends to resign in its capacity as
Collateral Administrator under the Agreement, with effect on June 9, 2025 at 12:01 a.m. New York
City time (such date of resignation, the “Resignation Effective Date”) and Western Alliance (as
defined below) intends to act as successor collateral agent (in such capacity, the “Successor
Collateral Agent”), successor collateral administrator (in such capacity, the “Successor Collateral
Administrator”), successor document custodian (in such capacity, the “Successor Document
Custodian”), and successor custodian (in such capacity, the “Successor Custodian”) under the
Agreement upon the Resignation Effective Date.
NOW, THEREFORE, based upon the above Recitals, the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions and Interpretation.
Each capitalized term used but not defined herein has the meaning ascribed thereto in the
Agreement. The rules of construction set forth in Section 1.02 of the Agreement are hereby
incorporated as if fully set forth herein.
780469636 22723957
Third Amendment to Credit Agreement
SECTION 2. Amendments.
With effect as of the Effective Date, the Agreement, including the Exhibits and Schedules
attached thereto, is hereby amended as indicated in the attached Annex A with the text marked in
underline indicating additions and with the text marked in strike through indicating deletions to
the Agreement.
SECTION 3. Resignation of Collateral Agent, Custodian and Document Custodian.
(a)In accordance with:
(ii)
Sections 13.01 and 13.05 of the Agreement, Citibank, as of the
Resignation Effective Date, hereby resigns as the Document Custodian. Citibank shall
continue to act as, and to perform the duties and obligations of, the Document Custodian
until the Resignation Effective Date. By executing below (A) the Borrower hereby consents
to the resignation of Citibank as Document Custodian, (B) Citibank hereby waives any
(iii)
Sections 14.01 and 14.05 of the Agreement, Citibank, as of the Resignation
Effective Date, hereby resigns as the Custodian. Citibank shall continue to act as, and to
perform the duties and obligations of, the Custodian until the Resignation Effective Date.
By executing below (A) the Borrower hereby consents to the resignation of Citibank as
Custodian, (B) Citibank hereby waives any notice requirement set forth in section 14.05 of
the Agreement with respect to its resignation as Custodian and the appointment of Western
Alliance as Custodian, (C) the Administrative Agent hereby appoints Western Alliance as
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(i) Section 12.05 of the Agreement, Citibank, as of the Resignation Effective
Date, hereby resigns as the Collateral Agent. Citibank shall continue to act as, and to
perform the duties and obligations of, the Collateral Agent until the Resignation Effective
Date. By executing below (A) the Lenders hereby appoint Western Alliance Trust
Company, N.A. (“Western Alliance”) to act as Collateral Agent and the Borrower hereby
consents to such appointment, (B) the Borrower, the Collateral Manager, the
Administrative Agent and the Lenders party hereto each waive any notice requirement set
forth in section 12.05 of the Agreement with respect to the resignation of Citibank as
Collateral Agent and appointment of Western Alliance as Collateral Agent, and (C)
Western Alliance hereby (1) accepts its appointment as Collateral Agent under the
Agreement and the other Facility Documents from and after the Resignation Effective Date
and (2) agrees that it will perform, in accordance with their terms, all of the obligations
which by the terms of the Agreement and the other Facility Documents are required to be
performed by it as Collateral Agent;
notice requirement set forth in section 13.05 of the Agreement with respect to its
resignation as Document Custodian and the appointment of Western Alliance as Document
Custodian, (C) the Administrative Agent hereby appoints Western Alliance as Document
Custodian and (D) Western Alliance hereby (1) accepts its appointment as Document
Custodian under the Agreement and the other Facility Documents from and after the
Resignation Effective Date and (2) agrees that it will perform, in accordance with their
terms, all of the obligations which by the terms of the Agreement and the other Facility
Documents are required to be performed by it as Document Custodian;
Custodian and (D) Western Alliance hereby (1) accepts its appointment as Custodian under
the Agreement and the other Facility Documents from and after the Resignation Effective
Date and (2) agrees that it will perform, in accordance with their terms, all of the obligations
which by the terms of the Agreement and the other Facility Documents are required to be
performed by it as Custodian; and
(iv)
Sections 15.01 and 15.04 of the Agreement, Virtus, as of the Resignation Effective
Date, hereby resigns as the Collateral Administrator. Virtus shall continue to act as, and to
(b)
For the avoidance of doubt, from and after the Resignation Effective Date, (A)
Western Alliance shall succeed to and become vested with all of the rights, powers, privileges and
duties of (1) Citibank, in its capacities as the retiring Collateral Agent, Document Custodian and
Custodian and (2) Virtus, in its capacity as the retiring Collateral Administrator, (B) each of
Citibank and Virtus shall be discharged from its duties and obligations under the Agreement and
the other Facility Documents and (C) all references to (1) Citibank, N.A., as the Collateral Agent,
(c)
On the Resignation Effective Date, all notice addresses in the Facility Documents
(including, for the avoidance of doubt, the exhibits and schedules attached to the Agreement) for
the Collateral Agent, Custodian, Document Custodian and Collateral Administrator shall be
deleted in their entirety and replaced with the notice addresses listed below:
(i)
Minnesota
If to the Collateral Agent: Western Alliance Trust Company, N.A., 3601
Drive,
Suite
800,Bloomington,
MN
55435,
E-Mail:
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perform the duties and obligations of, the Collateral Administrator until the Resignation
Effective Date. By executing below (A) the Borrower hereby consents to the resignation
of Virtus as Collateral Administrator, (B) Virtus hereby waives any notice requirement set
forth in section 15.04 of the Agreement with respect to its resignation as Collateral
Administrator and the appointment of Western Alliance as Collateral Administrator, (C)
the Borrower hereby appoints Western Alliance as the Collateral Administrator and the
Administrative Agent, Borrower and Collateral Manager hereby consent to such
appointment and (D) Western Alliance hereby (1) accepts its appointment as Collateral
Administrator under the Agreement and the other Facility Documents from and after the
Resignation Effective Date and (2) agrees that it will perform, in accordance with their
terms, all of the obligations which by the terms of the Agreement and the other Facility
Documents are required to be performed by it as Collateral Administrator.
Document Custodian and Custodian and (2) Virtus Group, LP, as the Collateral Administrator, in
the Agreement and the other Facility Documents shall be deleted in their entirety and replaced by
references to Western Alliance Bank, as Collateral Agent, Collateral Administrator, Document
Custodian and Custodian. By executing below, each of Citibank and Virtus confirms that it shall
provide Western Alliance with all records and information as requested by Western Alliance (on
which Western Alliance may conclusively rely) in their respective possession necessary for
Western Alliance to perform in its capacity as Collateral Agent, Custodian, Document Custodian,
and Collateral Administrator within 15 Business Days following the Resignation Effective Date.
Further, each of Citibank and Virtus confirms that it shall provide Western Alliance with all
Related Documents (as defined in the Agreement) held by such party within 5 Business Days of
the Resignation Effective Date along with a list of such Related Documents on which Western
Alliance may conclusively rely.
MSCCFunding@Westernalliancetrust.com, Attention: Corporate Trust – MSCC Funding
I, LLC; with a copy to: Western Alliance Trust Company, N.A., 800 Town & Country -
Ste. 400, Houston, TX77024, Attention: Corporate Trust – MSCC Funding I, LLC;
(ii)
If to the Collateral Administrator: Western Alliance Trust Company, N.A.,
3601
Minnesota
Drive,
Suite
800,
Bloomington,
MN
55435,
E-Mail:
MSCCFunding@Westernalliancetrust.com, Attention: Corporate Trust – MSCC Funding
I, LLC; with a copy to: Western Alliance Trust Company, N.A., 800 Town & Country -
Ste. 400, Houston, TX77024, Attention: Corporate Trust – MSCC Funding I, LLC;
(iii)
Minnesota
If to the Custodian: Western Alliance Trust Company, N.A., 3601
Drive,
Suite
800,
Bloomington,
MN
55435,
E-Mail:
MSCCFunding@Westernalliancetrust.com, Attention: Corporate Trust – MSCC Funding
I, LLC; with a copy to: Western Alliance Trust Company, N.A., 800 Town & Country -
Ste. 400, Houston, TX77024, Attention: Corporate Trust – MSCC Funding I, LLC; and
(iv)
If to the Document Custodian: Western Alliance Trust Company, N.A.,
3601
Minnesota
Drive,
Suite
800,
Bloomington,
MN
55435,
E-Mail:
MSCCFunding@Westernalliancetrust.com, Attention: Corporate Trust – MSCC Funding
I, LLC.
(d) For the avoidance of doubt, in no event shall Western Alliance have (i) any
obligation to perform as Collateral Agent, Custodian, Document Custodian, and Collateral
Administrator prior to the Resignation Effective Date, (ii) any liability or responsibility for any
action taken by Citibank or Virtus prior to the Resignation Effective Date, or (iii) any duty or
obligation to inspect, review or examine any Related Documents delivered to it by Citibank or to
determine whether any Related Document has been delivered to it by Citibank.
(e)
On the Resignation Effective Date, (i) Citibank, Western Alliance and all other
relevant parties will enter into an amendment to the Account Control Agreement substantially in
the form of Annex B attached hereto, pursuant to which (a) Western Alliance shall succeed to and
become vested with all of the rights, powers, privileges and duties of Citibank, in its capacities as
Secured Party (as defined in the Account Control Agreement), Securities Intermediary (as defined
(f)
On the Resignation Effective Date, Mayer Brown LLP (“Mayer Brown”) will
prepare and file the applicable UCC-3 financing statements replacing Citibank, as the secured
780469636 22723957
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in the Agreement) and Custodian under the Account Control Agreement and (b) Citibank shall be
discharged from its duties and obligations under the Account Control Agreement, (ii) the Borrower
and all other relevant parties will enter into an amended and restated Collateral Agent and
Collateral Administrator Fee Letter, which shall supersede and replace the existing Collateral
Agent and Collateral Administrator Fee Letter in its entirety, (iii) Dechert LLP shall deliver
opinions with respect to certain corporate and security interest matters, in form and substance
reasonably satisfactory to the Administrative Agent, (iv) Alston & Bird shall deliver a legal
opinion with respect to certain corporate matters, in form and substance reasonably satisfactory to
the Administrative Agent and (v) Western Alliance shall deliver a certificate of a Responsible
Officer of Western Alliance certifying as to the incumbency and specimen signature of each of its
Responsible Officers authorized to execute the Facility Documents to which it is a party.
party thereunder, with Western Alliance. corporate matters, in form and substance reasonably
satisfactory to the Administrative Agent.
(g)
Notwithstanding the termination of the Facility Documents on the date hereof, the
Borrower, Western Alliance, the Collateral Agent, the Document Custodian and the Collateral
Administrator hereby agree as follows:
(i)
From the Resignation Effective Date until 90 days after the Resignation
Effective Date, the Collateral Agent shall remit promptly any funds received by it in respect
of the Assets to Western Alliance by wire transfer to the account listed on Schedule I hereto
and the Collateral Administrator shall provide Western Alliance all information reasonably
requested by Western Alliance with respect to the amounts comprising such wire transfer
and the Assets to which such amounts relate (including any information received by the
Collateral Agent accompanying such wire transfer);
(ii)
on the Resignation Effective Date, the Collateral Administrator shall
provide to Western Alliance a list of each Asset held by the Borrower as of the Resignation
Effective Date;
(iii)
from the Resignation Effective Date until 90 days after the Resignation
Effective Date, the Collateral Administrator shall promptly forward any notices, corporate
actions or any other documents received by the Collateral Administrator with respect to the
Assets to Western Alliance at the address provided to the Collateral Administrator by
Western Alliance from time to time;
(iv)
the Collateral Agent, Document Custodian and the Collateral Administrator
agree to cooperate with any requests for information (to the extent Collateral Custodian,
Document Custodian or the Collateral Administrator, as applicable, actually received or
generated such information) from the Borrower or Western Alliance with respect to (i) the
Assets, (ii) any other items related to Citibank, N.A.’s performance as Collateral Agent or
Document Custodian or Virtus Group, LP’s performance as Collateral Administrator prior
to the Resignation Effective Date;
(v)
the Borrower, Western Alliance, the Collateral Agent and the Collateral
Administrator hereby expressly agree that if at any time after the Collateral Agent has
780469636 22723957
5
transferred funds to Western Alliance and such payment is reversed or clawed-back by, or
otherwise requested to be, and is, returned to, a paying agent in connection with any Asset
(a “Claw-Back Event”), the Collateral Custodian shall promptly notify the Borrower and
Western Alliance, and Western Alliance shall promptly transfer funds to Collateral Agent
from the assets solely to the extent available therefrom (and if not available at such time,
as and when proceeds become available), in accordance with the wire transfer instructions
provided to it by Collateral Agent, for any such payment made by Collateral Agent in
respect of such Claw-Back Event. The Borrower hereby agrees to reimburse Western
Alliance, the Collateral Agent, the Securities Intermediary and the Collateral Administrator
for all expenses incurred by each of Western Alliance, the Collateral Agent, the Securities
Intermediary or the Collateral Administrator in connection with any Claw-Back Event and
shall indemnify each of the Collateral Agent and the Collateral Administrator respective
officers, directors, employees and agents, and hold them harmless against, for any loss,
liability, or expense incurred without negligence, bad faith or willful misconduct, arising
out of or in connection with any Claw-Back Event, including any claim or liability in
connection therewith; and
(vi)
the rights, protections and indemnities granted to Citibank in its capacities
as Collateral Agent, Document Custodian and Virtus Group, LP in its capacity as Collateral
Administrator, in each case, under the Facility Documents that explicitly survive the
termination of such parties shall survive such respective resignation.
SECTION 4. Agreement in Full Force and Effect as Amended.
Except as specifically amended hereby, all provisions of the Agreement shall remain in full
force and effect. This Amendment shall not be deemed to expressly or impliedly waive, amend or
supplement any provision of the Agreement other than as expressly set forth herein and shall not
constitute a novation of the Agreement.
SECTION 5. Representations and Warranties.
Each of the Borrower and Collateral Manager hereby represents and warrants as of the date
of this Amendment as follows:
(a)
this Amendment has been duly executed and delivered by it;
(b)
against it in
this Amendment constitutes its legal, valid and binding obligation, enforceable
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity;
(c)
each of the representations and warranties of the Borrower and the Collateral
Manager contained in the Facility Documents are true and correct in all material respects as of the
date of this Amendment (except to the extent such representations and warranties expressly relate
to any earlier date, in which case such representations and warranties are true and correct in all
material respects as of such earlier date as if made on such date); and
(d)
after giving effect to this Amendment, there is no Default, Event of Default,
Potential Collateral Manager Termination Event or Collateral Manager Termination Event that is
continuing or would result from entering into this Amendment.
SECTION 6. Conditions to Effectiveness.
This Amendment shall become effective on the date upon which each of the following
conditions precedent has been satisfied (the “Effective Date”):
(a)
receipt by the Administrative Agent and the Lenders of executed counterparts of:
(i)
this Amendment;
780469636 22723957
6
(ii)
the Second Amended and Restated Lender Fee Letter, dated as of the date
hereof (the “Lender Fee Letter”), by and among the Lenders and the Borrower, as agreed
to and acknowledged by the Administrative Agent;
(b)
receipt by the Lenders of the fees payable on the date hereof as specified in the
Lender Fee Letter to the extent invoiced at least one (1) Business Day prior to the Effective Date;
(c)
receipt by Mayer Brown of its reasonable and documented fees and out-of-pocket
expenses incurred in connection with the closing of the transactions contemplated by this
Amendment to the extent invoiced at least one (1) Business Day prior to the Effective Date; and
(d)
payment of all fees and other amounts due and payable on or prior to the date hereof
pursuant to the Facility Documents.
SECTION 7. Miscellaneous.
(a)
This Amendment may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts, taken together, shall
(b)
This Amendment may not be amended or otherwise modified except as provided
in the Agreement.
780469636 22723957
7
constitute but one and the same agreement. Delivery of an executed signature page of this
Amendment by facsimile or other electronic transmission shall be effective as delivery of a
manually executed counterpart hereof. The words “execution,” “signed,” “signature,” “delivery,”
and words of like import in or relating to any document to be signed in connection with this
Amendment and all other documents to be executed in connection with this Amendment shall be
deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as a manually executed
signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case
may be, to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act;
provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures
in any form or format without its prior written consent (it being understood that the Administrative
Agent has agreed, for purposes of this Amendment and all other documents to be executed in
connection with this Amendment, to accept Electronic Signatures delivered via “Adobe Sign” or
“Docusign”). For purposes of this Amendment and all other documents to be executed in
connection with this Amendment, “Electronic Signature” means an electronic symbol or process
attached to, or associated with, a contract or other record and adopted by a Person with the intent
to sign, authenticate or accept such contract or record. Each party agrees that this Amendment and
all other documents to be executed in connection with this Amendment may be electronically
signed, and that any Electronic Signatures appearing on this Amendment and all other documents
to be executed in connection with this Amendment are the same as handwritten signatures for the
purposes of validity, enforceability, and admissibility.
(c)
The failure or unenforceability of any provision hereof shall not affect the other
provisions of this Amendment.
(d)
This Amendment is a Facility Document and all references to a “Facility
Document” in the Agreement and the other Facility Documents shall be deemed to include this
Amendment.
(e)
This Amendment represents the final agreement between the parties only with
respect to the subject matter expressly covered hereby and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements between the parties. There are no unwritten
oral agreements between the parties.
(f)
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR
CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED
UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER
FACILITY DOCUMENT (EXCEPT, AS TO ANY OTHER FACILITY DOCUMENT, AS
EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(g)
Each of the Borrower, the Collateral Manager, the Administrative Agent, and the
Lenders hereby consents to and directs each of the Collateral Administrator, the Collateral Agent,
[Signature Pages Follow]
780469636 22723957
8
the Document Custodian and the Custodian to execute this Amendment and acknowledges and
agrees that each of the Collateral Administrator, the Collateral Agent, the Document Custodian
and the Custodian shall be fully protected in relying upon the foregoing consent and direction and
hereby releases each of the Collateral Administrator, the Collateral Agent, the Document
Custodian and the Custodian and its respective officers, directors, agents, employees and
shareholders, as applicable, from any liability for complying with such direction, including but not
limited to any claim that this Amendment is not authorized or permitted by the Agreement or the
Facility Documents or any claim that some or all of the conditions precedent to the execution of
this Amendment have not been complied with. Each of the Collateral Administrator, the Collateral
Agent, the Document Custodian and the Custodian are entitled to the benefit of every provision of
the Agreement relating to the conduct of, affecting the liability of or affording protection to the
Collateral Administrator, the Collateral Agent, the Document Custodian and the Custodian in
entering into this Amendment.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first written above.
BORROWER:
MSCC FUNDING I, LLC
By:
Name: Ryan R. Nelson
Title: Chief Financial Officer and Treasurer
COLLATERAL MANAGER:
MAIN STREET CAPITAL CORPORATION
By:
Name: Ryan R. Nelson
Title: Chief Financial Officer and Treasurer
780469636 22723957
Third Amendment to Credit Agreement
/s/ Ryan R. Nelson
/s/ Ryan R. Nelson
COLLATERAL ADMINISTRATOR:
VIRTUS GROUP, LP
By: Rocket Partners Holdings, LLC, its General
Partner
COLLATERAL AGENT,
DOCUMENT CUSTODIAN AND
CUSTODIAN:
CITIBANK, N.A.
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Third Amendment to Credit Agreement
By: /s/ Heleen Brody
Name: Heleen Brody
Title: SE Product Line Manager
By: /s/ Azenth Olvera-Bravo
Name: Azenth Olvera-Bravo
Title: Senior Trust Officer
________________________________________________
________________________________________________
ADMINISTRATIVE AGENT,
SWINGLINE LENDER AND
LENDER:
TRUIST BANK
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Third Amendment to Credit Agreement
By: /s/ Richard T. Zell
Name: Richard T. Zell
Title: Director
________________________________________________
LENDER:
FIRST FINANCIAL BANK
LENDER:
APPLE BANK
LENDER:
ZIONS BANCORPORATION N.A. DBA
AMEGY BANK
780469636 22723957
Third Amendment to Credit Agreement
By: /s/ Mike Mendenhall
Name: Mike Mendenhall
Title: Managing Director
By: /s/ Burt Feinberg
Name: Burt Feinberg
Title: Managing Director
By: /s/ Brad Ellis
Name: Brad Ellis
Title: SVP
________________________________________________
________________________________________________
________________________________________________
LENDER:
EVERBANK, N.A.
By: /s/ Frank Martino
Name: Frank Martino
Title: Director
LENDER:
WESTERN ALLIANCE BANK
By: /s/ Grant Pritchard
Name: Grant Pritchard
Title: Managing Director
SOLELY WITH RESPECT TO
SECTION 3, SUCCESSOR
COLLATERAL AGENT,
SUCCESSOR COLLATERAL
ADMINISTRATOR, SUCCESSOR
DOCUMENT CUSTODIAN AND
SUCCESSOR CUSTODIAN:
WESTERN ALLIANCE TRUST COMPANY,
N.A.
By: /s/ Jennifer Kelley
Name: Jennifer Kelley
Title: Senior Transaction Manager
780469636 22723957
Third Amendment to Credit Agreement
________________________________________________
________________________________________________
________________________________________________
780469636 22723957
ANNEX A
See Attached
780469636 22723957
CONFORMED THROUGH SECONDTHIRD AMENDMENT
780469636 22723957
REVOLVING CREDIT AND SECURITY AGREEMENT1
among
MSCC FUNDING I, LLC,
as Borrower,
Main Street Capital Corporation,
as Collateral Manager
the Lenders from time to time parties hereto,
Truist Bank,
as Administrative Agent and Swingline Lender
CITIBANK, N.A.,
as Collateral Agent, as Document Custodian and as Custodian
and
Virtus Group, LP,
as Collateral Administrator
Dated as of November 22, 2022
1 Effective as of the Resignation Effective Date, all (1) references to and (2) notice addresses for (a) Citibank, N.A.,
as the Collateral Agent, Document Custodian and Custodian and (b) Virtus Group, L.P., as the Collateral
Administrator, in this Revolving Credit and Security Agreement, the exhibits and schedules attached hereto, and the
other Facility Documents shall be deleted in their entirety and replaced by references to and notice addresses for
Western Alliance Trust Company, N.A., as Collateral Agent, Collateral Administrator, Document Custodian and
Custodian.
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Table of Contents
Section
Heading
Page
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS1
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
Section 1.05.
Section 1.06.
Definitions1
Rules of Construction58
Computation of Time Periods58
Collateral Value Calculation Procedures59
Divisions60
Rates61
ARTICLE II ADVANCES61
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Section 2.10.
Section 2.11.
Revolving Credit Facility61
Making of the Advances62
Evidence of Indebtedness62
Payment of Principal and Interest63
Prepayment of Advances64
Changes of Commitments65
Maximum Lawful Rate65
Several Obligations65
Increased Costs66
Compensation; Breakage Payments67
Illegality; Inability to Determine Rates; Benchmark
Replacement Setting68
Rescission or Return of Payment70
Past Due Interest71
Payments Generally71
Refunding of Swingline Advances71
Defaulting Lenders72
Replacement of Lenders74
Increase in Facility Amount75
Section 2.12.
Section 2.13.
Section 2.14.
Section 2.15.
Section 2.16.
Section 2.17.
Section 2.18.
ARTICLE III CONDITIONS PRECEDENT76
Section 3.01.
Section 3.02.
Conditions Precedent to Initial Advances76
Conditions Precedent to Each Borrowing78
ARTICLE IV REPRESENTATIONS AND WARRANTIES79
Section 4.01.
Section 4.02.
Representations and Warranties of the Borrower79
Representations and Warranties of the Collateral Manager83
ARTICLE V COVENANTS86
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Affirmative Covenants of the Borrower86
Negative Covenants of the Borrower91
Affirmative Covenants of the Collateral Manager94
Negative Covenants of the Collateral Manager97
Certain Undertakings Relating to Separateness97
ARTICLE VI EVENTS OF DEFAULT99
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Section 6.01.
Section 6.02.
Events of Default99
Collateral Manager Termination Events103
ARTICLE VII PLEDGE OF COLLATERAL; RIGHTS OF THE COLLATERAL
AGENT104
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
Grant of Security104
Release of Security Interest106
Rights and Remedies106
Remedies Cumulative107
Related Documents108
Borrower Remains Liable108
Protection of Collateral108
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Section 8.05.
Collection of Money109
Collection Account110
Transaction Accounts111
The Revolving Reserve Account; Fundings111
Reinvestment of Funds in Covered Accounts; Reports by
Collateral Agent112
Accountings113
Release of Collateral114
Reports by Independent Accountants115
Covered Account Details115
Section 8.06.
Section 8.07.
Section 8.08.
Section 8.09.
Section 9.01.
Disbursements of Monies from Payment Account115
ARTICLE X SALE OF COLLATERAL LOANS; PURCHASE OF ADDITIONAL
COLLATERAL LOANS119
Section 10.01.
Section 10.02.
Section 10.03.
Section 10.04.
Sales of Collateral Loans119
Purchase of Additional Collateral Loans121
Substitution and Transfer of Loans121
Conditions Applicable to All Sale, Substitution and Purchase
Transactions122
Additional Equity Contributions123
Section 10.05.
Section 11.01.
Section 11.02.
Section 11.03.
Section 11.04.
Section 11.05.
Section 11.06.
Section 11.07.
Section 11.08.
Section 12.01.
Authorization and Action130
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ARTICLE VIII ACCOUNTS, ACCOUNTINGS AND RELEASES109
ARTICLE IX APPLICATION OF MONIES115
ARTICLE XI ADMINISTRATION AND SERVICING OF CONTRACTS123
Designation of the Collateral Manager123
Duties of the Collateral Manager124
Limited Liability of the Collateral Manager126
Authorization of the Collateral Manager127
Collection Efforts; Modification of Collateral127
Collateral Management Compensation128
The Collateral Manager Not to Resign128
Collateral Manager Termination Notice; Appointment of
Successor Collateral Manager128
ARTICLE XII THE AGENTS130
Section 12.02.
Section 12.03.
Section 12.04.
Section 12.05.
Section 12.06.
Section 12.07.
Section 12.08.
Section 12.09.
Section 12.10
Delegation of Duties131
Agent’s Reliance, Etc131
Indemnification134
Successor Agents134
Compensation135
Erroneous Payments135
Instructions to Collateral Agent138
The Collateral Agent139
Termination of Collateral Agent141
Section 13.01.
Section 13.02.
Section 13.03.
Section 13.04.
Section 13.05.
Section 13.06.
Section 13.07.
Section 13.08.
Section 13.09.
Section 13.10.
Section 13.11.
Section 14.01.
Section 14.02.
Section 14.03.
Section 14.04.
Section 14.05.
Section 14.06.
Section 14.07.
Section 14.08.
Section 14.09.
Section 15.01.
Section 15.02.
Section 15.03.
Powers and Duties of Collateral Administrator157
Compensation158
Limitation of Responsibility of the Collateral Administrator;
Indemnification158
Termination of Collateral Administrator163
Representations and Warranties of the Collateral
Administrator164
Successors and Assigns165
Joint Venture165
Section 15.04.
Section 15.05.
Section 15.06.
Section 15.07.
Section 16.01.
No Waiver; Modifications in Writing165
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ARTICLE XIII THE DOCUMENT CUSTODIAN142
Designation of Document Custodian142
Duties of Document Custodian142
Merger or Consolidation145
Document Custodian Compensation146
Document Custodian Removal146
Limitation on Liability146
Resignation of the Document Custodian149
Release of Related Documents149
Return of Related Documents150
Access to Certain Documentation and Information Regarding
the Collateral; Audits150
Representations and Warranties of the Document Custodian151
ARTICLE XIV THE CUSTODIAN152
Designation of Custodian152
Duties of Custodian152
Merger or Consolidation152
Custodian Compensation152
Custodian Removal153
Limitation on Liability153
Resignation of the Custodian155
Access to Certain Documentation and Information Regarding
the Collateral; Audits156
Representations and Warranties of the Custodian156
ARTICLE XV THE COLLATERAL ADMINISTRATOR157
ARTICLE XVI MISCELLANEOUS165
Section 16.02.
Section 16.03.
Section 16.04.
Section 16.05.
Section 16.06.
Section 16.07.
Section 16.08.
Section 16.09.
Section 16.10.
Section 16.11.
Section 16.12.
Section 16.13.
Section 16.14.
Section 16.15.
Section 16.16.
Section 16.17.
Section 16.18.
Section 16.19.
Notices, Etc166
Taxes167
Costs and Expenses; Indemnification171
Execution in Counterparts173
Assignability174
Governing Law176
Severability of Provisions176
Confidentiality176
Merger177
Survival177
Submission to Jurisdiction; Waivers; Service of Process; Etc177
Waiver of Jury Trial178
Right of Setoff; Payments Pro Rata178
Waiver of Setoff179
PATRIOT Act Notice179
Legal Holidays179
Non-Petition179
Acknowledgement and Consent to Bail-In of Affected Financial
Institutions180
Acknowledgement Regarding Any Supported QFCs180
Section 16.20.
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SCHEDULES
Schedule 1
Schedule 2
Schedule 3
Schedule 4
Schedule 5
Schedule 6
Schedule 7
Schedule 8
Schedule 9
EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F-1
Exhibit F-2
Exhibit F-3
Exhibit G
Form of Notice of Borrowing (with attached form of Borrowing Base Calculation)
Form of Notice of Prepayment
Form of Assignment and Acceptance
Form of Account Control Agreement
Form of Release of Related Documents
Form of Facility Amount Increase Request
Form of Facility Amount Increase Agreement
Form of Lender Joinder Agreement
Form of Loan Checklist
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Initial Commitments and Percentages
Form of Monthly Report
Initial Collateral Loans
GICS Industry Group Classifications
Notice Information
Covered Account Details
Authorized Signatories
Scheduled Split First Lien Loans
Scheduled Split Lien Loans
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REVOLVING CREDIT AND SECURITY AGREEMENT
This REVOLVING CREDIT AND SECURITY AGREEMENT, dated as of November 22, 2022, is
made by and among MSCC FUNDING I, LLC, a Delaware limited liability company, as borrower
(the “Borrower”); MAIN STREET CAPITAL CORPORATION, a Maryland corporation, as the collateral
manager (the “Collateral Manager”); the LENDERS from time to time party hereto; TRUIST BANK
(“Truist”), as administrative agent for the Secured Parties (as hereinafter defined) (the
“Administrative Agent”) and as Swingline Lender (in such capacity, the “Swingline Lender”);
CITIBANK, N.A., as collateral agent for the Secured Parties (the “Collateral Agent”), as custodian
(in such capacity, together with its successors and assigns, the “Custodian”) and as document
custodian (in such capacity, together with its successors and assigns, the “Document Custodian”);
and VIRTUS GROUP, LP, as collateral administrator (the “Collateral Administrator”).
Recitals:
WHEREAS, the Borrower desires that the Lenders make advances on a revolving basis
to the Borrower on the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, each Lender is willing to make such advances to the Borrower on the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS
Section 1.01.
the meanings indicated:
Definitions. As used in this Agreement, the following terms shall have
“Account Control Agreement” means an agreement in substantially the form of Exhibit
D.
“Administrative Agent” has the meaning assigned to such term in the introduction to this
Agreement.
“Administrative Expense Cap” means, for any rolling twelve (12) month period,
Administrative Expenses in an amount equal to $300,000 (other than fees and expenses incurred
on or prior to the Closing Date).
“Administrative Expenses” means, for any Interest Accrual Period, the fees and
expenses (including indemnities) and other amounts payable by the Borrower due or accrued with
respect to the related Payment Date and payable by the Borrower in the following order:
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1
(a) first, on a pro rata basis, to the Collateral Agent, the Custodian, the
Document Custodian and the Collateral Administrator, any amounts and indemnities
payable to such Persons pursuant to the Facility Documents; and
(b)
second, on a pro rata basis, to:
(i) the Independent Accountants, agents (other than the Collateral
Manager) and counsel of the Borrower for fees and expenses related to the
Collateral and the Facility Documents, to any subcontractor of the Collateral
Manager and to the Independent Manager of the Borrower for its fees and expenses
incurred in acting in such capacity; and
(ii)
to any rating agency for fees and expenses in connection with the
rating of (or provision of credit estimates in respect of) any Collateral Loans.
“Advance” means each loan advanced by the Lenders (including the Swingline Lender)
to the Borrower on a Borrowing Date pursuant to Article II (including each Swingline Advance
and each advance made for the purpose of refunding the Swingline Lender for any Swingline
Advances pursuant to Section 2.15(a)).
“Advance Rate” means, with respect to any Collateral Loan, the corresponding percentage
for the loan type set forth below:
Loan Type
Advance Rate
First Lien Loan
Split First Lien Loan
Split Lien Loan
Second Lien Loan
70.072.5%
70.072.5%
53.0%
35.0%
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK
Financial Institution.
“Affected Person” means (i) the Administrative Agent, each Lender and each of their
respective Affiliates and (ii) any assignee or participant of any Lender.
“Affiliate” means, in respect of a referenced Person, another Person Controlling,
Controlled by or under common Control with such referenced Person; provided that a Person shall
not be deemed to be an “Affiliate” of an Obligor solely because it is under the common ownership
or control of the same financial sponsor or affiliate thereof as such Obligor (except if any such
Person or Obligor provides collateral for, guarantees or otherwise supports the obligations of the
other such Person or Obligor).
“Agents” means, collectively, the Administrative Agent, the Collateral Administrator and
the Collateral Agent.
“Aggregate Collateral Balance” means, at any time, the sum of:
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(a)
the Aggregate Principal Balance of all Eligible Collateral Loans (other than
Defaulted Collateral Loans, Credit Improved Loans, Discount Collateral Loans and
Haircut Collateral Loans), plus
(b)
the Defaulted Collateral Loan Balance, plus
(c)
the aggregate purchase price (i.e., the purchase price as a percentage of par
multiplied by the current Principal Balance) of all Discount Collateral Loans that are
Eligible Collateral Loans and not Defaulted Collateral Loans, Haircut Collateral Loans or
Credit Improved Loans, plus
(d)
the aggregate unfunded commitments of all Delayed Drawdown Collateral
Loans and Revolving Collateral Loans that are Eligible Collateral Loans, plus
(e)
the Credit Improved Loan Collateral Loan Balance, plus
(f)
the Haircut Collateral Loan Balance.
“Aggregate Funded Spread” means, as of any date, the sum of:
(a)
in the case of each Floating Rate Loan (excluding any Floor Loan) that
bears interest at a spread over an index (including any SOFR rate based index), (i) the
excess of the sum of such spread and such index over the Benchmark as then in effect
(which spread or excess may be expressed as a negative percentage) multiplied by (ii) the
Principal Balance of such Collateral Loan; and
(b)
in the case of each Floor Loan, (i) the excess of the interest rate on such
Floor Loan (including any interest rate spread) as of such date over the Benchmark as then
in effect (which spread or excess may be expressed as a negative percentage) multiplied
by (ii) the Principal Balance of each such Collateral Loan.
“Aggregate Principal Balance” means, when used with respect to all or a portion of the
Collateral Loans, the sum of the Principal Balances of all or of such portion of such Collateral
Loans.
“Aggregate Unfunded Spread” means, as of any date, the sum of the products obtained by
multiplying (a) for each Delayed Drawdown Collateral Loan and Revolving Collateral Loan, the
related commitment fee or other analogous fees (expressed at a per annum rate) then in effect as
of such date and (b) the undrawn commitments of each such Delayed Drawdown Collateral Loan
and Revolving Collateral Loan as of such date.
“Agreement” means this Revolving Credit and Security Agreement.
“Anti-Corruption Laws” means, with respect to any Person, all laws, rules, and
regulations of any jurisdiction applicable to such Person or its subsidiaries from time to time
concerning or relating to bribery or corruption.
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“Anti-Money Laundering Laws” means the laws, rules and regulations imposed by any
governmental authorities, including, without limitation, the Government of Canada, with
jurisdiction over the Borrower, the Collateral Manager or any of their respective subsidiaries that
relate to money laundering or terrorism financing or any financial record-keeping and reporting
requirements thereunder.
“Applicable Law” means any Law of any Governmental Authority, including all Federal
and state banking or securities laws, to which the Person in question is subject or by which it or
any of its assets or properties are bound. For the avoidance of doubt, for purposes of Section
16.03, “Applicable Law” shall include FATCA.
“Applicable Margin” has the meaning assigned to such term in the Lender Fee Letter.
“Appraisal” means, with respect to any Collateral Loan, an appraisal of such Collateral
Loan that is conducted by an Approved Appraisal Firm, which may be in the form of an update
or reaffirmation by an Approved Appraisal Firm of an appraisal of such Collateral Loan
previously performed by such Approved Appraisal Firm or another Approved Appraisal Firm.
“Approved Appraisal Firm” means (i) Deloitte & Touche LLP, (ii) Valuation Research
Corporation and (iii) any other independent appraisal firm or independent financial advisor
recognized as being experienced in conducting valuations of secured loans retained by the
Borrower, the Collateral Manager or the agent or lenders under any Collateral Loan and consented
to by the Administrative Agent.
“Assignment and Acceptance” means an Assignment and Acceptance in substantially the
form of Exhibit C, entered into by a Lender, an assignee, the Administrative Agent and, if
applicable, the Borrower.
“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
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“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 Accrual
Period” pursuant to Section 2.11(e).
financial institutions or their affiliates (other than through liquidation, administration or other
insolvency proceedings).
“Bankruptcy Code” means the United States Bankruptcy Code, Title 11, United States
Code §§101 et seq.
“Base Rate Term SOFR Determination Day” shall have the meaning set forth the
definition of “Term SOFR”.
“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 2.11(b).
“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 Administrative Agent
for the applicable Benchmark Replacement Date:
(a)
(b)
the sum of (i) Daily Simple SOFR and (ii) 0.10%; or
the sum of: (i) the alternate benchmark rate that has been selected by the
Administrative 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 Facility Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the
then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or
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“Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Prime
Rate, (b) the Federal Funds Rate, as in effect from time to time, plus 0.50%, (c) Term SOFR for a
one-month tenor in effect on such day plus 1.00% and (d) zero percent (0%). The Administrative
Agent’s prime lending rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. The Administrative Agent and the Lenders may make
commercial loans or other loans at rates of interest at, above, or below the Administrative Agent’s
prime lending rate. Any change in the Base Rate due to a change in the Prime Rate, the Federal
Funds Rate, or Term SOFR will be effective from and including the effective date of such change
in the Prime Rate, the Federal Funds Rate, or Term SOFR, respectively. Interest calculated
pursuant to clause (a) above will be determined based on a year of 365 or 366 days, as applicable,
and actual days elapsed. Interest calculated pursuant to clauses
(b) and (c) above will be determined based on a year of 360 days and actual days elapsed.
method for calculating or determining such spread adjustment, (which may be a positive or
negative value or zero) that has been selected by the Administrative Agent and the Borrower
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, as determined by the Administrative Agent, 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
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred
in the case of clause (a) or (b) above 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).
“Benchmark Transition Event” means, as determined by the Administrative Agent, 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
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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.
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.
“Beneficial Ownership Certificate” means a certification regarding beneficial ownership
required by the Beneficial Ownership Regulation, which certification shall be substantially similar
in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity
Customers published jointly, in May 2018, by the Loan Syndications and Trading Association
and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation” means 31 C.F.R. §1010.230.
“Borrower” has the meaning assigned to such term in the introduction to this Agreement.
“Borrower Information” has the meaning assigned to such term in Section 16.09.
“Borrowing” has the meaning assigned to such term in Section 2.01.
“Borrowing Base” means, at any time, an amount equal to:
(a)
the Aggregate Collateral Balance (excluding unfunded commitments
pursuant to clause (d) of the definition thereof) of all Eligible Collateral Loans, minus
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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 Facility
Document in accordance with Section 2.11 and (b) ending at the time that a Benchmark
Replacement has replaced the then-current Benchmark for all purposes hereunder and under any
Facility Document in accordance with Section 2.11.
(b)
(i) during the Reinvestment Period, any Excess Concentration Amounts
and (ii) after the Reinvestment Period, any Excess Concentration Amounts in existence
on the last day of the Reinvestment Period.
“Borrowing Base Calculation Statement” means a statement in substantially the form
attached to the form of Notice of Borrowing attached hereto as Exhibit A, as such form of
Borrowing Base Calculation Statement may be modified by the Administrative Agent from time
to time to the extent such form does not, in the good faith opinion of the Administrative Agent,
accurately reflect the calculation of the Borrowing Base required hereunder, in each case, as
notified to the Collateral Administrator.
“Borrowing Date” means the date of a Borrowing.
“Business Day” means any day other than a Saturday or Sunday; provided that days on
which banks are authorized or required to close in New York, New York, Bloomington,
Minnesota, Phoenix, Arizona, Houston, Texas or Charlotte, North Carolina, in each case, shall
not constitute Business Days.
“Cash” means Dollars immediately available on the day in question.
“Certificated Security” has the meaning assigned to such term in Section 8-102(a)(4) of
the UCC.
“Change of Control” means, at any time, the occurrence of one of the following events:
(1) the Parent fails to own, directly or indirectly, 100% of the equity interests of the Borrower free
and clear of all Liens other than Permitted Liens at any time; or (2) the Collateral Manager ceases
to directly or indirectly manage the assets of the Borrower.
“Citibank” means Citibank, N.A.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to
Section 17A of the Exchange Act.
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“Change in Law” means (a) the adoption of any Law after the Closing Date, (b) any
change in any Law or in the interpretation or application thereof by any Governmental Authority
after the Closing Date or (c) compliance by any Lender (or, for purposes of Section 2.09(b), by
any lending office of such Lender or by such Lender’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any Governmental Authority
made or issued after the Closing Date; provided that, notwithstanding anything herein to the
contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines, requirements or directives thereunder or issued in connection therewith or in
implementation thereof and (y) all requests, rules, guidelines, requirements or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in
Law” hereunder regardless of the date of effectiveness.
“Clearing Corporation” means each entity included within the meaning of “clearing
corporation” under Section 8-102(a)(5) of the UCC.
“Clearing Corporation Security” means securities which are in the custody of or
maintained on the books of a Clearing Corporation or a nominee subject to the control of a
Clearing Corporation and, if they are Certificated Securities in registered form, properly endorsed
to or registered in the name of the Clearing Corporation or such nominee.
“Closing Date” means November 22, 2022.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any
successor statute.
“Collateral” has the meaning assigned to such term in Section 7.01(a).
“Collateral Administrator” has the meaning assigned to such term in the introduction to
this Agreement.
“Collateral Agent” has the meaning assigned to such term in the introduction to this
Agreement.
“Collateral Agent and Collateral Administrator Fee Letter” means the fee letter setting
forth the fees and other amounts payable by the Borrower to Citibank (for any of its capacities)
and Virtus Group, LP in connection with the transactions contemplated by this Agreement and
other Facility Documents.
“Collateral Interest Amount” means, as of any date of determination, without duplication,
the aggregate amount of Interest Proceeds that has been received or that is expected to be received
according to the Related Documents (other than Interest Proceeds expected to be received from
Defaulted Collateral Loans, Ineligible Collateral Loans or Interest Proceeds the Collateral
Manager does not expect to be received on schedule), in each case during the
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“Collateral Default Ratio” means, on any date of determination, the percentage
equivalent of a fraction (i) the numerator of which is equal to the sum for each Collateral Loan
that became a Defaulted Collateral Loan after the Closing Date during the immediately prior 12-
month period (or such shorter period as shall have elapsed since the Closing Date) of the product
of (a) the Principal Balance of such Collateral Loan multiplied by (b) 1 minus the applicable
Recovery Rate for each such Collateral Loan, and (ii) the denominator of which is equal to (a) the
sum of the Principal Balances of all Eligible Collateral Loans as of the first day of each month
during the immediately preceding 12 months (or such shorter period as shall have elapsed since
the Closing Date), divided by (b) 12; provided that, for purposes of calculating the Collateral
Default Ratio, (x) for any date of determination during the Ramp-Up Period, the denominator in
the preceding clause (ii) shall be deemed to equal the Facility Amount then in effect, and (y) for
any date of determination after the Ramp-Up Period, if the immediately prior 12-month period
includes dates occurring during the Ramp-Up Period, the calculation solely with respect to the
denominator shall be equal to the average Aggregate Principal Balances of all Eligible Collateral
Loans as of the first day of each calendar month occurring after the Ramp-Up Period.
Collection Period (and, if such Collection Period does not end on a Business Day, the next
succeeding Business Day) in which such date of determination occurs.
“Collateral Loan” means a loan, debt obligation or debt security acquired by the
Borrower.
“Collateral Management Fees” means, collectively, Senior Collateral Management Fees
and Subordinated Collateral Management Fees.
“Collateral Manager” has the meaning assigned to such term in the introduction to this
Agreement.
“Collateral Manager Expense Cap” means, for any rolling twelve (12) month period,
Collateral Manager Expenses in an amount equal to $100,000.
“Collateral Manager Expenses” means, for any Interest Accrual Period, the out-
of-pocket expenses incurred by the Collateral Manager in connection with the Facility
Documents.
“Collateral Manager Termination Event” means the occurrence of any of the events, acts
or circumstances set forth in Section 6.02.
“Collateral Manager Termination Notice” has the meaning assigned to such term in
Section 6.02.
“Collateral Quality Test” means a test that is satisfied if, as of any date of determination
after the end of the Ramp-Up Period, in the aggregate, the Collateral Loans owned (or, in relation
to a proposed purchase of a Collateral Loan, both owned and proposed to be owned) by the
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“Collateral Management Standard” means, with respect to any Collateral Loans included
in the Collateral, to service and administer such Collateral Loans in accordance with the Related
Documents and all customary and usual servicing practices (a) which are consistent with the higher
of: (i) the customary and usual servicing practices that a prudent loan investor or lender would use
in servicing loans like the Collateral Loans for its own account, and (ii) the same care, skill,
prudence and diligence with which the Collateral Manager services and administers loans for its
own account or for the account of others with similar investment objectives and strategies; and (b)
without regard to: (i) any relationship that the Collateral Manager or any Affiliate of the Collateral
Manager may have with any Obligor or any Affiliate of any Obligor, (ii) the Collateral Manager’s
obligations to incur servicing and administrative expenses with respect to a Collateral Loan, (iii)
the Collateral Manager’s right to receive compensation for its services hereunder or with respect
to any particular transaction, (iv) the ownership by the Collateral Manager or any Affiliate thereof
of any retained interest or one or more loans of the same class as any Collateral Loans, (v) the
ownership, servicing or management for others by the Collateral Manager of any other loans or
property by the Collateral Manager, or (vi) any relationship that the Collateral Manager or any
Affiliate of the Collateral Manager may have with any holder of other loans of the Obligor with
respect to such Collateral Loans.
Borrower satisfy, or if not satisfy, maintain or improve, each of the tests set forth below,
calculated, in each case, in accordance with Section 1.04:
(a)
the Weighted Average Spread Test;
(b)
the Weighted Average Coupon Test;
(c)
the Weighted Average Life Test; and
(d)
the Weighted Average EBITDA Test.
For the avoidance of doubt, the Collateral Quality Tests shall be deemed inapplicable during the
Ramp-Up Period.
“Collection Account” has the meaning assigned to such term in Section 8.02 and includes
the Principal Collection Account and the Interest Collection Account.
“Collection Date” means the date on which the aggregate outstanding principal amount
of the Advances have been repaid in full and all Interest and fees and all other Obligations (other
than contingent indemnification and reimbursement obligations which are unknown, unmatured
and/or for which no claim giving rise thereto has been asserted) have been paid in full, and the
Borrower shall have no further right to request any additional Advances.
“Collection Period” means, with respect to any Payment Date, the period commencing
the day immediately following the prior Collection Period (or on the Closing Date, in the case of
the Collection Period relating to the first Payment Date) and ending eight (8) Business Days after
the last day of the month or, in the case of the Collection Period immediately preceding the Final
Maturity Date or the Collection Period immediately preceding an optional prepayment in whole
of the Advances, ending on the Business Day preceding the Final Maturity Date or the date of
such prepayment, respectively.
“Collections” means all cash collections, distributions, payments and other amounts
received, and to be received, by the Borrower from any Person in respect of any Collateral Loans
constituting Collateral, including all principal, interest, fees, distributions and redemption and
withdrawal proceeds payable to the Borrower under or in connection with any such Collateral
Loans and all Proceeds from any sale or disposition of any such Collateral Loans.
“Commitment Fees” has the meaning assigned to such term in the Lender Fee Letter.
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“Commitment” means, as to each Lender, the obligation of such Lender to make, on and
subject to the terms and conditions hereof, Advances to the Borrower pursuant to Section 2.01 in
an aggregate principal amount at any one time outstanding for such Lender up to but not exceeding
the amount set forth opposite the name of such Lender on Schedule 1 or in the Assignment and
Acceptance or Lender Joinder Agreement pursuant to which such Lender shall have assumed its
Commitment, as applicable, as such amount may be reduced from time to time pursuant to Section
2.06, increased from time to time pursuant to Section 2.18 or increased or reduced from time to
time pursuant to assignments effected in accordance with Section 16.06.
“Commitment Termination Date” means the last day of the Reinvestment Period.
(a)
not more than 5.00% may consist of Collateral Loans that are issued by a
single Obligor and its Affiliates, except that (i) up to 6.67% may consist of Collateral
Loans issued by each of the three largest single Obligors and their respective Affiliates
and (ii) up to 6.0% may consist of Collateral Loans issued by each of the fourth and fifth
largest single Obligors and their respective affiliates;
(b)
not more than 10.00% may consist of Collateral Loans that are issued by
Obligors and their Affiliates that belong to any single GICS Industry Group Classification,
except that (i) up to 25.00% may consist of Collateral Loans with Obligors and their
Affiliates in the largest GICS Industry Group Classification and (ii) up to 15.00% may
consist of Collateral Loans with Obligors and their Affiliates in each of the second and
third largest GICS Industry Group Classifications;
(c)
not more than 10.00% may consist of Second Lien Loans and Split Lien
Loans, collectively; provided that not more than 5.00% may consist of Second Lien Loans;
(d)
not more than 5.00% may consist of DIP Loans;
(e)
not more than 10.00% may consist of Collateral Loans whose Obligors are
domiciled in Canada;
(f)
not more than 10.00% may consist of Partial PIK Loans;
(g)
not more than 20.00% may consist of Revolving Collateral Loans and
Delayed Drawdown Collateral Loans, collectively;
(h)
not more than 10.00% may consist of Discount Collateral Loans;
(i)
not more than 25.00% may consist of Credit Improved Loans;
(j)
not more than 10.00% may consist of Collateral Loans that provide for
payment of interest less frequently than quarterly;
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“Concentration Limitations” means, as of any date of determination, the following
limitations (calculated without duplication) as applied to the Aggregate Collateral Balance of the
Eligible Collateral Loans (including, for Delayed Drawdown Collateral Loans and Revolving
Collateral Loans, the unfunded commitments thereunder) owned (or, in relation to a proposed
purchase of an Eligible Collateral Loan, proposed to be owned) by the Borrower, calculated as a
percentage of (i) during the Ramp-Up Period, the Facility Amount then in effect and (ii) thereafter,
the Aggregate Principal Balance of all Eligible Collateral Loans (including, for Delayed
Drawdown Collateral Loans and Revolving Collateral Loans, the unfunded commitments
thereunder) owned by the Borrower (after giving effect to any proposed purchase of Eligible
Collateral Loans):
(k)
not more than 3.00% may consist of Collateral Loans with attached equity
kickers (which shall exclude equity co-investments);
(l)except in the case of Haircut Collateral Loans, not more than 25.00% may
consist of Collateral Loans whose Obligors have an EBITDA that is less than
$10,000,000;
(m)
except in the case of Haircut Collateral Loans, not more than 15.00% may
consist of Collateral Loans that exceed one or more of the following limits: (i) the Obligor
on such Collateral Loan is a Tier 1 Obligor and has (x) with respect to a Collateral Loan
(n)
not more than 15.00% may consist of Collateral Loans that, at the time of
acquisition thereof by the Borrower or the Borrower’s commitment to acquire the same,
were LBO Loans;
(o)
not more than 10.00% may consist of Fixed Rate Loans; and
(p)
not more than 30% in the aggregate may consist of Collateral Loans that
are issued by the five largest Obligors and their respective Affiliates, collectively.
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other than a Stretch Senior Loan, (A) a Senior Leverage Ratio greater than 5.00x, or (B) a
Total Leverage Ratio greater than 7.00x, or (y) with respect to a Stretch Senior Loan, a
Total Leverage Ratio greater than 6.00x; (ii) the Obligor on such Collateral Loan is a Tier
2 Obligor and has (x) with respect to a Collateral Loan other than a Stretch Senior Loan,
(A) a Senior Leverage Ratio greater than 4.25x, or (B) a Total Leverage Ratio greater than
6.00x, or (y) with respect to a Stretch Senior Loan, a Total Leverage Ratio greater than
5.25x; or (iii) the Obligor on such Collateral Loan is a Tier 3 Obligor and has (x) with
respect to a Collateral Loan other than a Stretch Senior Loan,
(A) a Senior Leverage Ratio greater than 3.75x, or (B) a Total Leverage Ratio greater than
5.00x, or (y) with respect to a Stretch Senior Loan, a Total Leverage Ratio greater than
4.50x;
“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 “Business Day”, the definition of “U.S. Government Securities Business
Day”, the definition of “Interest Accrual 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
2.09 and other technical, administrative or operational matters) that the Administrative Agent
decides (in consultation with the Borrower) may be appropriate to reflect the adoption and
implementation of any such rate or to permit the use and administration thereof by the
Administrative Agent in a manner substantially consistent with market practice (or, if the
Administrative Agent decides that adoption of any portion of such market practice is not
administratively feasible or if the Administrative Agent determines that no market practice for the
administration of any such rate exists, in such other manner of administration as the
Administrative Agent decides (in consultation with the Borrower) is reasonably necessary in
connection with the administration of this Agreement and the other Facility Documents).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or branch profits
Taxes.
“Constituent Documents” means in respect of any Person, the certificate or articles of
formation or organization, the limited liability company agreement, operating agreement,
partnership agreement, joint venture agreement or other applicable agreement of formation or
organization (or equivalent or comparable constituent documents) and other organizational
documents and by-laws and any certificate of incorporation, certificate of formation, certificate
of limited partnership and other agreement or similar instrument filed or made in connection with
its formation or organization.
“Contribution Notice” has the meaning assigned to such term in Section 10.05.
“Control” means the direct or indirect possession of the power to direct or cause the
direction of the management or policies of a Person, whether through ownership, by contract,
arrangement or understanding, or otherwise. “Controlled” and “Controlling” have the meaning
correlative thereto.
“Coverage Test” means each of (i) the Maximum Advance Rate Test and (ii) the Interest
Coverage Ratio Test.
“Covered Account” means each of the Collection Account (including, the Interest
Collection Account and, the Principal Collection Account therein), the Payment Account, the
Revolving Reserve Account and the Custodial Account and any subaccounts thereof.
“Credit Improved Loan” means:
(a)
with respect to any Defaulted Collateral Loan, after the date on which such
loan became a Defaulted Collateral Loan (other than as a result of a Material Modification),
(i) it is current on all required payments for a period of three months (if such loan pays
monthly), two quarters (if such loan pays quarterly) or one year (if such
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“Covenant Lite Loan” means a Collateral Loan that does not require the Obligor to comply
with at least one of the following financial covenants during each financial covenant reporting
period applicable to such Collateral Loan, whether or not any action by, or event relating to, the
Obligor has occurred: maximum leverage, maximum senior leverage, maximum first lien
leverage, minimum fixed charge coverage, minimum tangible net worth, minimum net worth,
minimum debt service coverage, minimum interest coverage, maximum capital expenditures,
minimum EBITDA, or other customary financial covenants; provided that, notwithstanding the
foregoing, a Collateral Loan shall be deemed not to be a Covenant Lite Loan if the Related
Documents with respect to such Collateral Loan contain a cross-default provision to, or such
Collateral Loan is pari passu with, another loan of the related Obligor forming part of the same
loan facility that requires such Obligor to comply with one or more of the foregoing financial
covenants.
loan pays semiannually) and (ii) it would satisfy the definition of Eligible Collateral Loan
(other than clause (k) or clause (dd) thereof) if purchased at such time; and
(b)
with respect to any Collateral Loan which has been the subject of a Material
“Credit Improved Loan Collateral Loan Balance” means, for each Credit Improved Loan
constituting an Eligible Collateral Loan, at any time, the lesser of (a) such Credit Improved Loan’s
Principal Balance and (b) such Credit Improved Loan’s Market Value.
“Current Modified Loan” means a Collateral Loan that as of the date such Collateral Loan
is modified (A) has been current on all required payments for a period of three months (if such
Collateral Loan pays monthly), two quarters (if such Collateral Loan pays quarterly) or one year
(if such Collateral Loan pays semiannually) and (B) would satisfy the definition of Eligible
Collateral Loan (other than clause (dd) thereof) if purchased on such modification date.
“Custodial Account” means the custodial account established pursuant to Section 8.03(b).
“Custodian” has the meaning assigned to such term in the introduction to this Agreement.
“Custodian Termination Notice” is defined in Section 14.05.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate
(which will include a lookback) being established by the Administrative 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
Administrative Agent decides that any such convention is not administratively feasible for the
Administrative Agent, then the Administrative Agent may establish another convention in its
reasonable discretion.
“Data File” has the meaning assigned to such term in Section 8.06(a).
“Debt to Capitalization Ratio” means, with respect to any Collateral Loan, the ratio of
total indebtedness to total capitalization of the related Obligor as calculated by the Collateral
Manager in good faith using information from and calculations consistent with the relevant
financial models, pro forma financial statements, compliance statements and financial reporting
packages provided by the relevant Obligor as per the requirements of the Related Documents.
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Modification, either (i) after the date on which such loan became a Collateral Loan which
is the subject of a Material Modification, (A) it is current on all required payments for a
period of three months (if such loan pays monthly), two quarters (if such loan pays
quarterly) or one year (if such loan pays semiannually) and (B) it would satisfy the
definition of Eligible Collateral Loan (other than clause (k) thereof as a result of such
Collateral Loan being subject to a Material Modification) if purchased at such time, or
(ii) the Administrative Agent has consented in writing to such Collateral Loan no longer
constituting a loan which has been the subject of a Material Modification hereunder.
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect.
“Default” means any event or circumstance which, with the passage of time, the giving
of notice, or both, would (if not cured or otherwise remedied during such time) constitute an Event
of Default.
“Defaulted Collateral Loan” means any Collateral Loan as to which any of the following
occurs:
(a)
a default as to all or any portion of one or more payments of principal,
interest or commitment fees has occurred (giving effect to any grace period applicable
thereto but in no event exceeding ten (10) Business Days past the applicable due date);
(b)
a default (other than a payment default described in clause (a) above) has
occurred under the applicable Related Documents and for which the Borrower (or the
administrative agent or required lenders pursuant to the Related Documents, as applicable)
has elected to exercise any of its rights and remedies under such Related Documents
(including, but not limited to, acceleration, foreclosing on collateral, or the imposition of
default pricing for a period of greater than two months);
(c)
except in the case of a DIP Loan, the related Obligor of such Collateral
Loan is subject of an Insolvency Event (without giving effect to any grace period set forth
in such definition);
(d)
any portion of principal and/or interest payable thereunder has been waived
or forgiven (other than default interest) by the holders of such obligation;
(e)
the Collateral Manager has reasonably determined in accordance with the
Collateral Management Standard that such Collateral Loan is not collectible or should be
placed on “non-accrual” status; or
(f)
a Material Modification (subject to clause (i) of the proviso contained in
the definition thereof);
provided that a Collateral Loan that meets the criteria for a Credit Improved Loan shall no longer
be characterized as a Defaulted Collateral Loan hereunder.
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“Defaulted Collateral Loan Balance” means, for each Defaulted Collateral Loan, at any
time, the lesser of (a) the current Market Value of such Defaulted Collateral Loan and (b) the
product of (i) the Recovery Rate of such Defaulted Collateral Loan and (ii) the Principal Balance
of such Defaulted Collateral Loan; provided that the Defaulted Collateral Loan Balance shall be
zero if such loan (x) is a Defaulted Collateral Loan pursuant to the definition thereof for six (6)
consecutive months or (y) is a Defaulted Collateral Loan pursuant to clause (d) of the definition
thereof or pursuant to clauses (b) or (e) of the definition of “Material Modification”; provided
further that any Defaulted Collateral Loan that meets the criteria to qualify as a Credit Improved
Loan shall no longer be characterized as a Defaulted Collateral Loan and shall instead be
characterized as a Credit Improved Loan; provided further that the Market Value of any Defaulted
Collateral Loan determined under clause (a) shall be subject to the Administrative Agent’s right
to challenge such value in its sole discretion; provided further that the Collateral Manager shall
have the right to dispute such challenge by providing the Administrative Agent with an Appraisal
(at the expense of the Borrower), which Appraisal shall constitute the Market Value of such
Defaulted Collateral Loan from and after receipt of such Appraisal.
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“Defaulting Lender” means, subject to Section 2.16, any Lender that (a) has failed to (i)
fund all or any portion of its Advances (including its participation in a Swingline Advance)
within two (2) Business Days of the date such Advances were required to be funded hereunder
unless such Lender notifies the Administrative Agent and the Borrower in writing that such
failure is the result of such Lender’s good faith determination that one or more conditions
precedent to funding (each of which conditions precedent, together with any applicable default,
shall be specifically identified in such writing) has not been satisfied or (ii) pay to the
Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within two (2) Business Days of the date when due, (b) has notified the Borrower or the
Administrative Agent in writing that it does not intend to comply with its funding obligations
hereunder, or has made a public statement to that effect (unless such writing or public statement
relates to such Lender’s obligation to fund an Advance (including participation in a Swingline
Advance) hereunder and states that such position is based on such Lender’s determination that a
condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has
failed, within three (3) Business Days after written request by the Administrative Agent or the
Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply
with its prospective funding obligations hereunder (provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the
Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company
that has, at any time after the Closing Date (i) become the subject of a proceeding under any
Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or
any other state or federal regulatory authority acting in such a capacity or (iii) become the subject
of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of
the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority so long as such ownership interest does not result
in or provide such Lender with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such Lender
(or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by the Administrative Agent that a
Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be
conclusive and binding absent manifest error, and such Lender shall be deemed to be a
Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such
determination to the Borrower and each Lender.
“Delayed Drawdown Collateral Loan” means a Collateral Loan that (a) requires
(whether or not subject to satisfaction of certain conditions precedent in the applicable Related
Documents) the Borrower to make one or more future advances to the Obligor under the Related
Documents, (b) specifies a maximum amount that can be borrowed on one or more fixed
borrowing dates, and (c) does not permit the re-borrowing of any amount previously repaid by the
Obligor thereunder, provided that any such Collateral Loan will be a Delayed Drawdown
Collateral Loan only to the extent of undrawn commitments and solely until all commitments by
the Borrower to make advances on such Collateral Loan to the Obligor under the Related
Documents expire or are terminated or are reduced to zero.
“Deliver” or “Delivered” or “Delivery” means the taking of the following steps:
(a)
in the case of each Instrument, causing the Custodian to maintain
continuous possession of such Instrument;
(b)
in the case of each Certificated Security (other than a Clearing
Corporation Security):
(i)
causing the delivery of such Certificated Security to the Custodian
(or, for any such items which are promissory notes or other evidence representing
a loan obligation, the Document Custodian) by registering the same in the name of
the Custodian or its affiliated nominee or by endorsing the same to the Custodian
or in blank;
(ii) causing the Custodian to indicate continuously on its books and
records that such Certificated Security is credited to the applicable Covered
Account; and
(iii)
causing the Custodian to maintain continuous possession of such
Certificated Security;
(c)
in the case of each Uncertificated Security (other than a Clearing
Corporation Security):
(i)
causing such Uncertificated Security to be continuously registered
on the books of the issuer thereof to the Custodian; and
(ii)
causing the Custodian to indicate continuously on its books and
records that such Uncertificated Security is credited to the applicable Covered
Account;
(d)
in the case of each Clearing Corporation Security:
(i)
causing the relevant Clearing Corporation to credit such Clearing
Corporation Security to the securities account of the Custodian, and
(ii) causing the Custodian to indicate continuously on its books and
records that such Clearing Corporation Security is credited to the applicable
Covered Account;
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(e)
in the case of each security issued or guaranteed by the United States of
America or agency or instrumentality thereof and that is maintained in book-entry records
of a Federal Reserve Bank (“FRB”) (each such security, a “Government Security”):
(i)
causing the creation of a Security Entitlement to such Government
Security by the credit of such Government Security to the securities account of the
Custodian at such FRB, and
(ii) causing the Custodian to indicate continuously on its books and
records that such Government Security is credited to the applicable Covered
Account;
(f)
in the case of each Security Entitlement not governed by clauses (a)
through (e) above:
(i)
causing a Securities Intermediary (x) to indicate on its books and
records that the underlying Financial Asset has been credited to the appropriate
Covered Account, (y) to receive a Financial Asset from a Securities Intermediary
or to acquire the underlying Financial Asset from a Securities Intermediary, and in
either case, accepting it for credit to the appropriate Covered Account or (z) to
become obligated under any other Law to credit the underlying Financial Asset to
a Securities Intermediary’s securities account,
(ii)
causing such Securities Intermediary to make entries on its books
and records continuously identifying such Security Entitlement as belonging to the
Custodian and continuously indicating on its books and records that such Security
Entitlement is credited to one of the Covered Accounts, which shall at all times be
a securities account, and
(iii)
causing the Custodian to indicate continuously on its books and
records that such Security Entitlement (or all rights and property of the Custodian
representing such Security Entitlement) is credited to the applicable Covered
Account;
(g)
in the case of Cash or Money:
(i)
causing the delivery of such Cash or Money to the Custodian,
(ii)
causing the Custodian to credit such Cash or Money to a “securities
account” (as defined in Section 8-501(a) of the UCC), which may be a component
account of the applicable Covered Account, in accordance with Article 9 of the
UCC, pursuant to agreement by the Custodian to treat such Cash or Money as a
Financial Asset, and
(iii) causing the Custodian to indicate continuously on its books and
records that such Cash or Money is credited to the applicable Covered Account;
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(h)
with respect to such of the Collateral as constitutes an account or general
intangible or is not otherwise described in the foregoing clauses (a) through (g), causing
to be filed with the Delaware Secretary of State a properly completed UCC financing
statement that names the Borrower as debtor and the Collateral Agent as secured party and
that describes such Collateral (which financing statement may have been previously filed)
or any equivalent filing in any applicable jurisdiction; or
(i)
in the case of each of clauses (a) through (h) above, such additional or
alternative procedures as may hereafter become appropriate to perfect the security interest
granted to the Collateral Agent hereunder in such items of the Collateral, consistent with
Applicable Law.
In addition, the Collateral Manager on behalf of the Borrower will obtain any and all
consents required by the Related Documents relating to any Instruments, accounts or general
intangibles for the transfer of ownership and/or pledge hereunder (except to the extent that the
requirement for such consent is rendered ineffective under Section 9-406 of the UCC).
“Deposit Placement Program” means a network of FDIC-insured depository institutions
and/or their affiliates who are FDIC-insured depository institutions (as defined in Section 3 of the
Federal Deposit Insurance Act), that have entered into agreements with IntraFi Network LLC
and/or its successors or assigns to collect and/or place deposits with the purpose of providing each
participating institution’s depositors increased access to FDIC deposit insurance.
“Designation Date” means, with respect to each Collateral Loan, the first date on which
the Collateral Loan is included in the Borrowing Base, as referenced in a Borrowing Base
Calculation Statement.
“Determination Date” means the last day of each Collection Period.
“DIP Loan” means an obligation:
(a)
obtained or incurred after the entry of an order of relief in a case pending
under Chapter 11 of the Bankruptcy Code,
(b)
to a debtor in possession as described in Chapter 11 of the Bankruptcy Code
or a trustee (if appointment of such trustee has been ordered pursuant to Section 1104 of
the Bankruptcy Code),
(c)
on which the related Obligor is required to pay interest and/or principal on
a current basis, and
(d)
approved by a Final Order or Interim Order of the bankruptcy court so long
as such obligation is (A) fully secured by a lien on the debtor’s otherwise unencumbered
assets pursuant to Section 364(c)(2) of the Bankruptcy Code, (B) fully secured by a lien
of equal or senior priority on property of the debtor estate that is otherwise subject to a
lien pursuant to Section 364(d) of the Bankruptcy Code or (C) is secured by a junior lien
on the debtor’s encumbered assets (so long as such loan is fully
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secured based on the most recent current valuation or appraisal report, if any, of the
debtor).
“Discount Collateral Loan” means any Collateral Loan having a purchase price of less
than 95% of par.
“Document Custodian” means Citibank, N.A. when acting in the role of a custodian of
the Related Documents hereunder.
“Document Custodian Facilities” means the office of the Document Custodian specified
on Schedule 5.
“Document Custodian Termination Notice” is defined in Section 13.05.
“Dollars” and “$” mean lawful money of the United States of America.
“Due Date” means each date on which any payment is due on a Collateral Loan in
accordance with its terms.
“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 Person 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.
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“EBITDA” means, with respect to any Relevant Test Period and any Collateral Loan, the
meaning of the term “Adjusted EBITDA”, the term “EBITDA” or any comparable definition in
the Related Documents for such period and Collateral Loan (or, in the case of a Collateral Loan
for which the Related Documents have not been executed, as set forth in the relevant marketing
materials or financial model in respect of such Collateral Loan) as determined in the good faith
discretion of the Collateral Manager, and, in any case that the term “Adjusted EBITDA”, the term
“EBITDA” or such comparable definition is not defined in such Related Documents, an amount,
for the principal Obligor thereunder and any of its parents or subsidiaries that are obligated as
guarantor pursuant to the Related Documents for such Collateral Loan (determined on a
consolidated basis without duplication in accordance with GAAP (and also on a pro forma basis
as determined in good faith by the Collateral Manager in case of any acquisitions)) equal to
earnings from continuing operations for such period plus interest expense, income taxes,
unallocated depreciation and amortization for such period (to the extent deducted in determining
earnings from continuing operations for such period), amortization of intangibles (including
goodwill, financing fees and other capitalized costs), other non-cash charges and organization
costs, extraordinary, one-time and/or non-recurring losses or charges, and any other item the
Collateral Manager and the Administrative Agent deem to be appropriate. Notwithstanding the
foregoing, in no event shall the EBITDA of an Obligor be based solely on prospective or modeled
performance as opposed to historical performance (including pro forma calculations).
“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.
“Eligible Collateral Loan” means a Collateral Loan that meets each of the following
criteria:
(a)
is a First Lien Loan (including, for the avoidance of doubt, a Stretch
Senior Loan), Split First Lien Loan, Split Lien Loan or Second Lien Loan;
(b)
at the time of acquisition thereof by the Borrower, was acquired for a
purchase price of more than 85% of par;
(c)
permits the purchase thereof by or assignment thereof to the Borrower and
the pledge thereof to the Collateral Agent;
(d)
is denominated and payable solely in Dollars;
(e)
principally
the primary Obligor thereon (i.e., the Obligor under which the loan was
underwritten) is domiciled in the United States (or any state, territory or
possession thereof) or Canada (or any province thereof);
(f) no portion thereof (including any conversion option, exchange option,
warrant or other component thereof) is exchangeable or convertible into an Equity
Security at the option of the related Obligor;
(g)
is not an Equity Security or a component of an Equity Security;
(h)
at the time of acquisition thereof by the Borrower, is not the subject of an
offer or call for redemption;
(i)
does not constitute Margin Stock;
(j)
does not subject the Borrower to withholding tax unless the related Obligor
is required to make “gross-up” payments that ensure that the net amount actually received
by the Borrower (after payment of all taxes, whether imposed on such Obligor or the
Borrower) will equal the full amount that the Borrower would have received had no such
taxes been imposed;
(k)
at the time of acquisition thereof by the Borrower, is not a Defaulted
Collateral Loan;
(l)
is not a non-cash payingNon-Cash Paying PIK Loan;
(m)
is not a Zero Coupon Obligation;
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(n)
is not a Covenant Lite Loan;
(o)
is not a Structured Finance Obligation, a bond, a synthetic security, a
finance lease or chattel paper;
(p)
maturity;
provides for the full principal balance to be payable at or prior to its
(q)
is not a participation interest; provided that participation interests may be
acquired by the Borrower within five (5) Business Days of the Closing Date if such
participation interests are elevated to a full assignment within 75 calendar days of
acquisition (and if not so elevated, such Collateral Loan shall no longer constitute an
Eligible Collateral Loan until such Collateral Loan is elevated unless the Administrative
Agent otherwise consents to a longer period);
(r)
has a remaining term to maturity of not more than seven (7) years;
(s)
provides for payment of interest at least semi-annually;
(t)
at the time of acquisition thereof by the Borrower, the obligation of the
related Obligor to pay principal and interest is not contingent on any material non-credit
related risk (such as the occurrence of a catastrophe), as determined by the Collateral
Manager in its sole discretion;
(u)
is not an obligation (other than a Revolving Collateral Loan or a Delayed
Drawdown Collateral Loan) pursuant to which any future advances or payments to the
Obligor may be required to be made by the Borrower;
(v)
will not cause the Borrower or the pool of Collateral to be required to be
registered as an investment company under the Investment Company Act;
(w)
was underwritten based on the enterprise value of the applicable Obligor
and not primarily the value of any real estate securing such Collateral Loan;
(x)
is not an interest only obligation (meaning, for the avoidance of doubt, that
the obligations thereunder constitute only interest payments (e.g., an I/O strip and not an
obligation with a bullet or balloon principal payment));
(y)
is not a letter of credit (other than a Revolving Collateral Loan that includes
a letter of credit sub-facility as long as the Borrower is not the letter of credit issuer with
respect thereto);
(z)
is in “registered” form for U.S. federal income tax purposes;
(aa)
promptly after the acquisition of such Collateral Loan, the Borrower has
delivered to the Document Custodian or the Collateral Administrator, in accordance with
the provisions of Article XII, (i) an executed copy of the Related Documents and (ii) the
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executed physical note evidencing such Collateral Loan (if any) or a copy of the
assignment or transfer agreement pursuant to which the Borrower acquired its interest;
(bb)
at the time of the Designation Date for such Collateral Loan, has (i) a Tier
1 Obligor with (x) in respect of a Collateral Loan other than a Stretch Senior Loan, (A) a
Senior Leverage Ratio of less than or equal to 5.50x and (B) a Total Leverage Ratio of
less than or equal to 7.50x, or (y) in respect of a Stretch Senior Loan, a Total Leverage
Ratio of less than or equal to 6.50x; (ii) a Tier 2 Obligor with (x) in respect of a Collateral
Loan other than a Stretch Senior Loan, (A) a Senior Leverage Ratio of less than or equal
to 4.75x and (B) a Total Leverage Ratio of less than or equal to 6.50x, or
(y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of less than or equal to
5.75x; or (iii) a Tier 3 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of less than or equal to 4.25x and (B) a Total
Leverage Ratio of less than or equal to 5.50x, or (y) in respect of a Stretch Senior Loan, a
Total Leverage Ratio of less than or equal to 5.00x; provided that any such Collateral Loan
that does not meet the criteria in this clause (bb) (but, for the avoidance of doubt, otherwise
constitutes an Eligible Collateral Loan) at any time shall not be considered an Ineligible
Collateral Loan, but shall be considered a Haircut Collateral Loan, hereunder;
(cc) at the time of the Designation Date for such Collateral Loan, has an Obligor
with an EBITDA of at least $5,000,000; provided that any such Collateral Loan that does
not meet the criteria in this clause (cc) (but, for the avoidance of doubt, otherwise
constitutes an Eligible Collateral Loan) at any time after such Designation Date shall not
be considered an Ineligible Collateral Loan, but shall be considered a Haircut Collateral
Loan hereunder;
(dd) at the time of acquisition thereof by the Borrower, has not been more than
thirty (30) days past due with respect to payments of either interest or principal on such
Collateral Loan within the past twelve (12) months;
(ee)
the Related Documents for such Collateral Loan are governed by the Laws
of the United States (or any state thereof) or Canada (or any province thereof); provided
that if such Collateral Loan (i) is owed by an Obligor (other than a guarantor) who is
domiciled (within the meaning of the Civil Code of Quebec) in the Province of Quebec or
whose address (as indicated in the Related Documents) is located in the Province of
Quebec, (ii) in respect of which the Related Documents provide that payments are to made
to an address or a bank account located or maintained in the Province of Quebec or
(iii) in respect of which the Related Documents governing the Collateral Loan contain a
stipulation to the effect that such contract is governed by the laws of the Province of
Quebec, then the Borrower shall have delivered security documentation reasonably
satisfactory to the Administrative Agent; and
(ff)
is not an obligation of an Obligor (or guarantor) engaged in (i) assault
weapons or firearms manufacturing, (ii) payday lending or adult entertainment, (iii) the
gaming industry (other than hospitality and/or resorts development, or the management
thereof or Obligors with ancillary business units that provide services to the gaming
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780461396 22723957
industry but who are not primarily involved in such activities) or (iv) the growth and sale
of marijuana.
“Eligible Investments” means any Dollar investment that, at the time it is Delivered
(directly or through an intermediary or bailee), is Cash or one or more of the following obligations
or securities:
(a)
direct interest bearing obligations of, and interest bearing obligations
guaranteed as to timely payment of principal and interest by, the United States or any
agency or instrumentality of the United States, the obligations of which are backed by the
full faith and credit of the United States;
(b)
demand or time deposits in, bank deposit products and certificates of
deposit of, bank deposit products, demand notes of, or bankers’ acceptances issued by any
(c)
commercial paper that (i) is payable in Dollars and (ii) is rated at least “A-
1” by S&P and “P-1” by Moody’s; and
(d)
units of money market funds having a rating of the Highest Required
Investment Category from each of S&P and Moody’s.; and
(e)
interest bearing deposits, including but not limited to Deposit Placement
Programs, in United States Dollars held at Western Alliance Bank or a bank that is
well-capitalized as reflected on the subject bank’s Consolidated Report of Condition and
Income or such other report of condition as is required by the bank’s primary Federal
banking regulator.
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depository institution or trust company organized under the Laws of the United States or
any State thereof (including any federal or state branch or agency of a foreign depository
institution or trust company) and subject to supervision and examination by federal and/or
state banking authorities (including, if applicable, the Collateral Agent, the Custodian, the
Collateral Administrator or the Administrative Agent or any agent thereof acting in its
commercial capacity); provided that the short-term unsecured debt obligations of such
depository institution or trust company at the time of such investment, or contractual
commitment providing for such investment, are rated at least “A-1” by S&P and “P-1” by
Moody’s;
No Eligible Investment shall have an “f,” “r,” “p,” “pi,” “q,” “sf” or “t” subscript
affixed to its S&P rating. Any such investment may be made or acquired from or through
the Collateral Agent or the Administrative Agent or any of their respective Affiliates, or
any Person for whom the Collateral Agent, the Administrative Agent, the Custodian, the
Collateral Administrator or any of their respective Affiliates provides services and receives
compensation (so long as such investment otherwise meets the applicable requirements of
the foregoing definition of Eligible Investment at the time of acquisition) or acts as offeror
of; provided that, notwithstanding the foregoing clauses (a) through (d), Eligible
Investments may only include obligations or securities that constitute cash equivalents for
purposes of the rights and assets in paragraph (c)(8)(i)(B) of the exclusions from the
definition of “covered fund” for purposes of the Volcker Rule. The
Collateral Agent, the Collateral Administrator, Custodian and Document Custodian shall
have no obligation to determine or oversee compliance with the foregoing or to determine
whether an investment is an “Eligible Investment”.
“Engagement Letter” means that certain engagement letter, dated as of October 11, 2022,
by and between Main Street Capital Corporation and Truist Securities, Inc.
“Equity Security” means any stock or similar security, certificate of interest or
participation in any profit sharing agreement, reorganization certificate or subscription,
transferable share, voting trust certificate or certificate of deposit for an equity security, limited
partnership interest, interest in a joint venture, or certificate of interest in a business trust; any
security future on any such security; or any security convertible, with or without consideration
into such a security, or carrying any warrant or right to subscribe to or purchase such a security;
or any such warrant or right.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Group” means, with respect to any Person, each controlled group of corporations
or trades or businesses (whether or not incorporated) under common control that is treated as a
single employer under Section 414(b) or (c) of ERISA or, for purposes of Section 302 of ERISA
or Section 412(m) or (o) of the Code, with such Person.
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780461396 22723957
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (other than an event for which the thirty
day notice requirement is waived); (b) the failure with respect to any Plan to satisfy the “minimum
funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA);
(c) the filing pursuant to Section 412(c) of the Code or Section 302 of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) a determination that
any Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or
Section 303 of ERISA); (e) the incurrence by the Borrower or any member of its ERISA Group
of any material liability under Title IV of ERISA with respect to the termination of any Plan; (f)
(i) the receipt by the Borrower or any member of its ERISA Group from the PBGC of a notice of
determination that the PBGC intends to seek termination of any Plan or to have a trustee appointed
for any Plan under Section 4041(c) of ERISA, or (ii) the filing by the Borrower or any member of
its ERISA Group of a notice of intent to terminate any Plan; (g) the incurrence by the Borrower or
any member of its ERISA Group of any material liability (i) with respect to a Plan pursuant to
Sections 4063 and 4064 of ERISA, (ii) with respect to a facility closing pursuant to Section
4062(e) of ERISA, or (iii) with respect to the withdrawal or partial withdrawal from any
Multiemployer Plan; (h) the receipt by the Borrower or any member of its ERISA Group of any
notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, in endangered status or critical status, within the meaning of Section
432 of the Code or Section 305 of ERISA or is or is expected to be insolvent, within the meaning
of Title IV of ERISA; or (i) the failure of the Borrower or any member of its ERISA Group to
make any required contribution to a Multiemployer Plan.
“Erroneous Payment” has the meaning assigned to it in Section 12.07(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section
12.07(d).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 12.07(d).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section
12.07(d).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section
12.07(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published
by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default” means the occurrence of any of the events, acts or circumstances set
forth in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder, 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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780461396 22723957
“Excess Concentration Amount” means, at any time in respect of which any one or more
of the Concentration Limitations are exceeded, the portions (calculated by the Collateral Manager
without duplication) of the Aggregate Collateral Balance of each Eligible Collateral Loan that
cause such Concentration Limitations to be exceeded; provided that (i) any Excess Concentration
Amount related to clause (l) of the definition of Concentration Limitations shall be calculated as
the product of (a) the portions (calculated without duplication) of the Aggregate Collateral
Balance of each Eligible Collateral Loan that causes such Concentration Limitation to be
exceeded, times (b) 1 minus the Recovery Rate applicable to each such Collateral Loan and
(ii) any Excess Concentration Amount related to clause (m) of the definition of Concentration
Limitation shall be calculated as the product of (a) the portions (calculated without duplication)
of the Aggregate Collateral Balance of each Eligible Collateral Loan that causes such
Concentration Limitation to be exceeded, times (b) 1 minus the lower of (x) 90% or (y) the Market
Value applicable to each such Collateral Loan.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a
Secured Party or required to be withheld or deducted from a payment to a Secured Party:
(a) Taxes imposed on or measured by a Secured Party’s net income (however denominated),
franchise Taxes imposed on a Secured Party, and branch profits Taxes imposed on a Secured
Party, in each case, (i) by the jurisdiction (or any political subdivision thereof) under the Laws of
which such Secured Party is organized or in which its principal office is located or, in the case of
any Lender, in which its applicable lending office is located or (ii) that are Other Connection
Taxes, (b) in the case of any Lender, U.S. federal withholding Taxes imposed on amounts payable
to or for the account of such Lender, with respect to any applicable interest in Advances
or Commitments, pursuant to a Law in effect on the date on which (i) such Lender becomes a
party hereto (other than pursuant to an assignment requested by the Borrower under Section 2.17)
or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to
Section 16.03(h), amounts with respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender became a party hereto or to such Lender immediately
before it changed its lending office, (c) Taxes attributable to such Secured Party’s failure to
comply with Section 16.03(g), and (d) U.S. federal withholding Taxes imposed under FATCA.
“Facility Amount” means (a) on or prior to the Commitment Termination Date,
$600,000,000 (as such amount may be reduced from time to time pursuant to Section 2.06 or
increased from time to time in accordance with Section 2.18) and (b) following the Commitment
Termination Date, the outstanding principal balance of all the Advances.
“Facility Amount Increase” means an increase in the Facility Amount pursuant to
Section 2.18.
“Facility Amount Increase Agreement” has the meaning assigned to such term in Section
2.18.
“Facility Amount Increase Request” has the meaning assigned to such term in Section
2.18.
“Facility Documents” means this Agreement, the Purchase and Contribution Agreement,
the Account Control Agreement, the Fee Letters, and any other security agreements and other
instruments entered into or delivered by or on behalf of the Borrower pursuant to Section 5.01(c)
to create, perfect or otherwise evidence the Collateral Agent’s security interest in the Collateral.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended or successor version that is substantively comparable and not materially more
onerous to comply with), any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory
legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or
convention among Governmental Authorities entered into in connection with the implementation
of the foregoing.
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“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it;
provided that, if at any time a Lender is borrowing overnight funds from a Federal Reserve Bank
that day, the Federal Funds Rate for such Lender for such day shall be the average rate per annum
at which such overnight borrowings are made on that day as promptly reported by such Lender to
the Borrower and the Agents in writing. Each determination of the Federal Funds Rate
by a Lender pursuant to the foregoing proviso shall be conclusive and binding except in the case
of manifest error. Notwithstanding anything herein to the contrary, in no event shall the Federal
Funds Rate be less than 0.00%.
“Fee Letters” means the Lender Fee Letter and the Collateral Agent and Collateral
Administrator Fee Letter.
“Final Maturity Date” means the earlier of (a) the second anniversary of the Scheduled
Reinvestment Period End Date (or such later date as may be agreed by the Borrower and each of
the Lenders and notified in writing to the Agents) or (b) the date of the termination of the
Commitments and acceleration of the Obligations pursuant to Section 6.01.
“Final Order” means an order, judgment, decree or ruling the operation or effect of which
has not been stayed, reversed or amended and as to which order, judgment, decree or ruling (or
any revision, modification or amendment thereof) the time to appeal or to seek review or rehearing
has expired and as to which no appeal or petition for review or rehearing was filed or, if filed,
remains pending.
“Financial Asset” has the meaning assigned to such term in Section 8-102(a)(9) of the
UCC.
“First Lien Loan” means any Collateral Loan (for purposes of this definition, a “loan”)
that meets the following criteria:
(a)
is not (and is not expressly permitted by its terms to become) subordinate
in right of payment to any other obligation for borrowed money of the Obligor of such
loan, unless such loan is a Split First Lien Loan;
(b)
is secured by a valid first priority perfected Lien in, to or on specified
collateral (unless such loan is a Split Lien Loan) securing the Obligor’s obligations under
such loan (whether or not such loan is also secured by any lower priority Lien on other
collateral), but subject to purchase money Liens and customary Liens for taxes or
regulatory charges not then due and payable and other permitted Liens under the Related
Documents; provided that such permitted Liens do not directly secure indebtedness for
borrowed money;
(c)
is secured, pursuant to such first priority perfected Lien (unless such loan
is a Split Lien Loan), by collateral having a value (determined as set forth below) that is
not less than the Principal Balance of such loan plus the aggregate Principal Balances of
all other loans of equal seniority secured by a first Lien in the same collateral; and
(d)
is not a loan which is secured solely or primarily by the common stock of
its Obligor or any of its Affiliates;
provided that the limitation set forth in clause (d) of this definition shall not apply with
respect to a Collateral Loan made to a parent entity that is secured solely or primarily by the stock
of one or more subsidiaries of such parent entity to the extent that either (i) in the Collateral
Manager’s judgment, the applicable Related Documents of such Collateral Loan limit
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the activities of such Obligor or such subsidiary, as applicable, in such a manner so as to provide
a reasonable expectation that (x) cash flows from such Obligor or from such subsidiary and such
Obligor, as applicable, are sufficient to provide debt service on such Collateral Loan and (y) assets
of such Obligor or of such subsidiary and such Obligor, as applicable, would be available to repay
principal of and interest on such Collateral Loan in the event of the enforcement of such Related
Documents or (ii) the granting by any such subsidiary of a Lien on its own property would violate
law or regulations applicable to such subsidiary (whether the obligation secured is such Collateral
Loan or any other similar type of indebtedness owing to third parties); provided that (i) neither a
First Lien/Last Out Loan nor a Split Lien Loan shall constitute a First Lien Loan and (ii) a Split
First Lien Loan and Stretch Senior Loan shall constitute a First Lien Loan; provided, however,
that, for purposes of determining the applicable Advance Rate for a Stretch Senior Loan (or
portion thereof), such Advance Rate shall be determined in accordance with the definition of
Stretch Senior Loan.
The determination as to whether clause (c) of this definition is satisfied shall be based on
both (a) an analysis of the enterprise value (including, without limitation, its general financial
condition, ability to generate cash flow available for debt service and other demands for that cash
flow) of the related Obligor by the Collateral Manager or an Appraisal or other valuation (which
may be an internal Appraisal or valuation performed by the Collateral Manager) performed on or
about the date of acquisition by the Borrower or of the most recent restructuring of such Collateral
Loan, and (b) the Collateral Manager’s judgment at the time such Collateral Loan is acquired by
the Borrower.
“First Lien/Last Out Loan” means a Collateral Loan (other than a Split First Lien Loan or
a Split Lien Loan) that would constitute a First Lien Loan (other than by operation of the proviso
in the definition of such term) but that, in the case of an event of default under the applicable
Related Document, will be paid after one or more tranches of first lien loans issued by the same
Obligor have been paid in full in accordance with a specified waterfall of payments.
“Fixed Charge Coverage Ratio” means, with respect to any Collateral Loan for any
Relevant Test Period, the meaning of “Fixed Charge Coverage Ratio” or any comparable term
relating to the ratio of fixed charges to EBITDA defined in the Related Documents for such
Collateral Loan, and in any case that “Fixed Charge Coverage Ratio” or such comparable term is
not defined in such Related Documents, the ratio of (a) fixed charges to (b) EBITDA as calculated
by the Collateral Manager in good faith using information from and calculations consistent with
the relevant financial models, pro forma financial statements, compliance statements and financial
reporting packages provided by the relevant Obligor as per the requirements of the Related
Documents.
“Fixed Rate Loan” means any Collateral Loan that bears a fixed rate of interest.
“Floating Rate Loan” means any Collateral Loan that bears a floating rate of interest.
“Floor” means a rate of interest equal to 0.00%.
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“Floor Loan” means, as of any date:
(a)
a Floating Rate Loan (1) for which the Related Documents provide for a
SOFR rate option (or other applicable benchmark rate) and that such SOFR rate (or other
applicable benchmark rate) is calculated as the greater of a specified “floor” rate per
annum and the SOFR rate (or other applicable benchmark rate) for the applicable interest
period and (2) that, as of such date, bears interest based on such SOFR rate option (or
other applicable benchmark rate), but only if as of such date the SOFR rate (or other
applicable benchmark rate) for the applicable interest period is less than such floor rate;
and
(b)
a Floating Rate Loan (1) for which the Related Documents provide for a
base or prime rate option and such base or prime rate is calculated as the greater of a
specified “floor” rate per annum and the base or prime rate for the applicable interest
period and (2) that, as of such date, bears interest based on such base or prime rate option,
but only if as of such date the base or prime rate for the applicable interest period is less
than such floor rate.
“FRB” has the meaning assigned to such term in the definition of Deliver.
“Fronting Exposure” means, at any time there is a Defaulting Lender, such Defaulting
Lender’s Percentage of the amount of Swingline Advances other than Swingline Advances as to
which such Defaulting Lender’s participation obligation has been reallocated to other Lenders,
repaid by the Borrower or for which cash collateral or other credit support acceptable to the
Swingline Lender shall have been provided in accordance with the terms hereof.
“Fundamental Amendment” means any amendment, modification, waiver or supplement
of or to this Agreement that would (a) increase or extend the term of the Commitments or change
the Final Maturity Date (other than an increase of the Commitment of a particular Lender or the
addition of a new Lender agreed to by the relevant Lender), (b) extend the date fixed for the
payment of principal of or interest on any Advance or any fee hereunder, (c) reduce the amount
of any such payment of principal, (d) reduce the rate at which Interest is payable thereon or any
fee is payable hereunder, (e) release any material portion of the Collateral, except in connection
with dispositions permitted hereunder, (f) alter the terms of Section 9.01 or Section 16.01(b), (g)
modify the definition of the terms “Majority Lenders”, “Required Lenders”, “Maximum Available
Amount”, “Borrowing Base”, “Maximum Advance Rate Test”, “Maximum Advance Rate Default
Test” or “Minimum Equity Amount”; (h) modify in any other manner the number or percentage
of the Lenders required to make any determinations or waive any rights hereunder or to modify
any provision hereof or (i) extend the Reinvestment Period.
“GAAP” means generally accepted accounting principles in effect from time to time in
the United States.
“GICS” means, as of any date, the most recently published Global Industry Classification
Standard.
“GICS Industry Group Classification” means any industry group classification within
GICS set forth in Schedule 4 hereto, as updated and amended from time to time.
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“Government Security” has the meaning assigned to such term in the definition of Deliver.
“Governmental Authority” means any nation or government, any state, province, territory
or other political subdivision thereof, any agency, authority, instrumentality, regulatory body,
administrative tribunal, central bank, public office, court, arbitration or mediation panel, or other
Person exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government, including the Securities and Exchange Commission, the
stock exchanges, any Federal, state, territorial, county, municipal or other government or
governmental agency, arbitrator, board, body, branch, bureau, commission, court, department,
instrumentality, master, mediator, panel, referee, system or other political unit or subdivision or
other Person of any of the foregoing, whether domestic or foreign.
“Governmental Authorizations” means all franchises, permits, licenses, approvals,
consents and other authorizations of all Governmental 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 filings with all
Governmental Authorities.
“Haircut Collateral Loan” means, at any time without duplication, (x) any Collateral
Loan that had satisfied clause (cc) of the definition of Eligible Collateral Loan on the related
Designation Date, but at any such time after the related Designation Date is no longer satisfying
clause (cc) of the definition of Eligible Collateral Loan or (y) any Collateral Loan that at any time
does not satisfy clause (bb) of the definition of Eligible Collateral Loan.
“Haircut Collateral Loan Balance” means:
(a)
for each First Lien Loan, Split First Lien Loan or Split Lien Loan that
constitutes a Haircut Collateral Loan solely as a result of the failure to satisfy clause (bb)
of the definition of Eligible Collateral Loan, at any time, the lesser of (i) the current Market
Value of such Haircut Collateral Loan, and (ii) the product of (x) the Principal Balance of
such Haircut Collateral Loan and (y) 1 minus (I) for a Haircut Level 1 Collateral Loan,
10%, (II) for a Haircut Level 2 Collateral Loan, 20%, (III) for a Haircut Level 3 Collateral
Loan, 35% and (IV) for a Haircut Level 4 Collateral Loan, 50%; provided that for each
Second Lien Loan that constitutes a Haircut Collateral Loan, at any time, the lesser of (i)
the current Market Value of such Haircut Collateral Loan and (ii) the product of (x) the
Principal Balance of such Haircut Collateral Loan and (y) 1 minus
(I) for a Haircut Level 1 Collateral Loan, a Haircut Level 2 Collateral Loan or a Haircut
Level 3 Collateral Loan, 50% and (II) for a Haircut Level 4 Collateral Loan, 70%, and
(b)
if such Collateral Loan constitutes a Haircut Collateral Loan solely as a
result of the failure to satisfy clause (cc) of the definition of Eligible Collateral Loan, at
any time, the lesser of (i) the current Market Value of such Haircut Collateral Loan, and
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(ii) the product of (x) the Principal Balance of such Haircut Collateral Loan and (y) the
Recovery Rate for such Collateral Loan.
Any Collateral Loan that constitutes a Haircut Collateral Loan as a result of the
failure to satisfy both clauses (bb) and (cc) of the definition of Eligible Collateral Loan
shall have its Haircut Collateral Loan Balance calculated in accordance with clause (b)
above.
“Haircut Level 1 Collateral Loan” means a Haircut Collateral Loan that is to:
(i)
a Tier 1 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 5.50x but less than or equal to
6.00x and (B) a Total Leverage Ratio of greater than 7.50x but less than or equal to 8.00x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than 6.50x but
less than or equal to 7.00x;
(ii)
a Tier 2 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 4.75x but less than or equal to
5.25x and (B) a Total Leverage Ratio of greater than 6.50x but less than or equal to 7.00x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than
5.75x but less than or equal to 6.25x; or
(iii)
a Tier 3 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 4.25x but less than or equal to
4.75x and (B) a Total Leverage Ratio of greater than 5.50x but less than or equal to 6.00x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than 5.00x but
less than or equal to 5.50x.
“Haircut Level 2 Collateral Loan” means a Haircut Collateral Loan that is to:
(i)
a Tier 1 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 6.00x but less than or equal to
6.50x and (B) a Total Leverage Ratio of greater than 8.00x but less than or equal to 8.50x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than 7.00x but
less than or equal to 7.50x;
(ii)
a Tier 2 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 5.25x but less than or equal to
5.75x and (B) a Total Leverage Ratio of greater than 7.00x but less than or equal to 7.50x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than
6.25x but less than or equal to 6.75x; or
(iii)
a Tier 3 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 4.75x but less than or equal to
5.25x and (B) a Total Leverage Ratio of greater than 6.00x but less than or equal to 6.50x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than 5.50x but
less than or equal to 6.00x.
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“Haircut Level 3 Collateral Loan” means a Haircut Collateral Loan that is to:
(i)
a Tier 1 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 6.50x but less than or equal to
7.00x and (B) a Total Leverage Ratio of greater than 8.50x but less than or equal to 9.00x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than 7.50x but
less than or equal to 8.00x;
(ii)
a Tier 2 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 5.75x but less than or equal to
6.25x and (B) a Total Leverage Ratio of greater than 7.50x but less than or equal to 8.00x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than
6.75x but less than or equal to 7.25x; or
(iii)
a Tier 3 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 5.25x but less than or equal to
5.75x and (B) a Total Leverage Ratio of greater than 6.50x but less than or equal to 7.00x,
or (y) in respect of a Stretch Senior Loan, a Total Leverage Ratio of greater than 6.00x but
less than or equal to 6.50x.
“Haircut Level 4 Collateral Loan” means a Haircut Collateral Loan that is to:
(i)
a Tier 1 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 7.00x and (B) a Total Leverage
Ratio of greater than 9.00x, or (y) in respect of a Stretch Senior Loan, a Total Leverage
Ratio of greater than 8.00x;
(ii)
a Tier 2 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 6.25x and (B) a Total Leverage
Ratio of greater than 8.00x, or (y) in respect of a Stretch Senior Loan, a Total Leverage
Ratio of greater than 7.25x; or
(iii)
a Tier 3 Obligor with (x) in respect of a Collateral Loan other than a Stretch
Senior Loan, (A) a Senior Leverage Ratio of greater than 5.75x and (B) a Total Leverage
Ratio of greater than 7.00x, or (y) in respect of a Stretch Senior Loan, a Total Leverage
Ratio of greater than 6.50x.
“Highest Required Investment Category” means (a) with respect to ratings assigned by
Moody’s, “Aa2” or “P-1” for one month instruments, “Aa2” and “P-1” for three month
instruments, “Aa3” and “P-1” for six month instruments and “Aa2” and “P-1” for instruments
with a term in excess of six months and (b) with respect to rating assigned by S&P, “A-1” for
short-term instruments and “A” for long-term instruments.
“Indemnified Party” has the meaning assigned to such term in Section 16.04(b).
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“Indemnified Taxes” means (a) Taxes other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of the Borrower under any
Facility Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Independent Accountants” has the meaning assigned to such term in Section 8.08.
“Ineligible Collateral Loan” means, at any time, a Collateral Loan or any portion
thereof, that fails to satisfy any criteria of the definition of Eligible Collateral Loan as of the date
when such criteria are applicable; it being understood that such criteria in the definition of Eligible
Collateral Loan that are specified to be applicable only as of the date of acquisition of such
Collateral Loan shall not be applicable after the date of acquisition of such Collateral Loan.
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“Independent Manager” means a natural Person who, (A) for the five-year period prior
to his or her appointment as Independent Manager, has not been, and during the continuation of
his or her service as Independent Manager is not: (i) an employee, director, stockholder, member,
manager, partner or officer of the Borrower, the Parent or any of their respective Affiliates (other
than his or her service as an Independent Manager of the Borrower, the Parent or other Affiliates
that are structured to be “bankruptcy remote”); (ii) a customer or supplier of the Borrower, the
Parent or any of their respective Affiliates (other than his or her service as an Independent
Manager of the Borrower, the Parent or any such Affiliate); (iii) a Person controlling or under
common control with any partner, shareholder, member, manager, Affiliate or supplier of the
Borrower, the Parent or any Affiliate thereof or (iv) any member of the immediate family of a
Person described in clauses (i), (ii) or (iii); provided that an independent manager may serve in
similar capacities for other special purpose entities established from time to time by Affiliates of
the Borrower or the Parent and (B) has, (i) prior experience as an Independent Manager for a
corporation or limited liability company whose charter documents required the unanimous
consent of all Independent Managers thereof before such corporation or limited liability company
could consent to the institution of bankruptcy or insolvency proceedings against it or could file a
petition seeking relief under any Applicable Law relating to bankruptcy and (ii) at least three
years of employment experience with one or more Persons that provide, in the ordinary course of
their respective businesses, advisory, management or placement services to issuers of
securitization or structured finance instruments, agreements or securities.
“Insolvency Event” means, with respect to a specified Person, (a) the filing of a decree or
order for relief by a court having jurisdiction in the premises in respect of such Person or any
substantial part of its property in an involuntary case under the Bankruptcy Code or any other
applicable insolvency Law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial
part of its property, or ordering the winding-up or liquidation of such Person’s affairs, and such
decree or order shall remain unstayed and in effect for a period of sixty consecutive days; or (b)
the commencement by such Person of a voluntary case under the Bankruptcy Code or any other
applicable insolvency Law now or hereafter in effect, or the consent by such Person to the entry
of an order for relief in an involuntary case under any such Law, or the consent by such Person to
the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors, or the failure by
such Person generally to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
“Instrument” has the meaning assigned to such term in Section 9-102(a)(47) of the UCC.
“Interest” means, for each day during an Interest Accrual Period, the sum of the products
(for each day during such Interest Accrual Period) of:
where:
IR
=
the Interest Rate for such Interest Accrual Period;
P
=the principal amount of the Advances outstanding on such day; and D
“Interest Accrual Period” means (a) with respect to the first Payment Date, the period
from and including the Closing Date to and including the last day of the calendar month preceding
the first Payment Date and (b) with respect to any subsequent Payment Date, the period
commencing on the first day of the calendar month in which the preceding Payment Date occurred
and ending on the last day of the calendar month immediately preceding the month in which such
Payment Date occurs; provided, that the final Interest Accrual Period hereunder shall end on and
include the day prior to the payment in full of the Advances hereunder.
“Interest Collection Account” has the meaning assigned to such term in Section 8.02(a).
“Interest Coverage Ratio” means, on any Monthly Reporting Date, the percentage equal
to:
(a)
an amount equal to the Collateral Interest Amount at such time; divided by
(b)
the amount payable on the Payment Date immediately following such date
of determination, in each case pursuant to Section 9.01(a)(i)(A) through (E).
“Interest Coverage Ratio Test” means a test that will be satisfied on any Monthly
Reporting Date if the Interest Coverage Ratio is greater than or equal to 125%; provided that the
Interest Coverage Ratio Test shall be deemed to be satisfied on any day prior to the initial Advance
hereunder.
“Interest Proceeds” means, with respect to any Collection Period or the related
Determination Date, without duplication, the sum of:
(a)all payments of interest and other income received in cash by the Borrower
during such Collection Period on the Collateral Loans (including interest and other
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=
360.
income received in cash on Ineligible Collateral Loans and accrued interest received in
cash in connection with a sale thereof during such Collection Period);
(b)
all principal and interest payments received by the Borrower during such
Collection Period on Eligible Investments purchased with Interest Proceeds and all interest
payments received by the Borrower during such Collection Period on Eligible Investments
purchased with amounts credited to the Revolving Reserve Account;
(c)
all amendment and waiver fees, late payment fees (including compensation
for delayed settlement or trades), and all protection fees and other fees and commissions
received by the Borrower during such Collection Period, unless the Collateral Manager
notifies the Agents before such Determination Date that the Collateral Manager in its sole
discretion has determined that such payments are to be treated as Principal Proceeds; and
(d)
commitment fees, facility fees, anniversary fees, ticking fees and other
similar fees received by the Borrower during such Collection Period unless the Collateral
Manager notifies the Agents before such Determination Date that the Collateral Manager
in its sole discretion has determined that such payments are to be treated as Principal
Proceeds;
provided that:
(1) as to any Defaulted Collateral Loan (and only so long as it remains
a Defaulted Collateral Loan), any amounts received in respect thereof will
constitute Principal Proceeds (and not Interest Proceeds) until the aggregate of all
Collections in respect thereof since it became a Defaulted Collateral Loan equals
the Principal Balance of such Defaulted Collateral Loan at the time as of which it
became a Defaulted Collateral Loan and all amounts received in excess thereof
will constitute Interest Proceeds;
(2) any amounts received in respect of any Equity Security that was
received in exchange for a Defaulted Collateral Loan will constitute Principal
Proceeds (and not Interest Proceeds) until the aggregate of all collections in respect
of such Equity Security equals the outstanding Principal Balance of the related
Collateral Loan, at the time it became a Defaulted Collateral Loan, for which such
Equity Security was received in exchange; and
(3)
all Cash received as equity contributions from the Parent will
constitute Principal Proceeds unless specified by the Collateral Manager pursuant
to Section 10.05.
“Interest Rate” means, for any Interest Accrual Period, an interest rate per annum equal
to (a) at the election of the Administrative Agent or Required Lenders, at any time an Event of
Default has occurred and is continuing (and has not otherwise been waived by the Lenders
pursuant to the terms hereof), the Base Rate plus the Applicable Margin, (b) with respect to
Swingline Advances, the Base Rate plus the Applicable Margin or (c) in all other cases, subject
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to Section 2.11, Term SOFR (or, if a Benchmark Replacement has occurred, the then-applicable
Benchmark) plus the Applicable Margin.
“Interim Order” means an order, judgment, decree or ruling entered after notice and a
hearing conducted in accordance with Bankruptcy Rule 4001(c) granting interim authorization,
the operation or effect of which has not been stayed, reversed or amended.
“Investment Company Act” means the Investment Company Act of 1940, as amended,
and the rules and regulations promulgated thereunder.
“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, treaty, rule of public
policy, settlement agreement, statute, or writ, of any Governmental Authority, or any particular
section, part or provision thereof.
“LBO Loan” means a Collateral Loan (a) the proceeds of which are used to finance the
acquisition of the Obligor by the sponsor thereof and (b) that has an Obligor with equity of less
than 25% of its total capitalization at the time of such acquisition, as determined by the Collateral
Manager in its commercially reasonable discretion.
“Lender Fee Letter” means that certain second amended and restated lender fee letter,
dated as of the SecondThird Amendment Date, by and among the Lenders, the Borrower and the
Administrative Agent.
“Lender Joinder Agreement” has the meaning assigned to such term in Section 2.18.
“Lenders” means the Persons listed on Schedule 1 and any other Person that shall have
become a party hereto in accordance with the terms hereof pursuant to an Assignment and
Acceptance or Lender Joinder Agreement, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Acceptance. For the avoidance of doubt, the Swingline
Lender shall constitute a “Lender” with respect to the repayment of Swingline Advances for all
purposes hereunder.
“Liabilities” means all liabilities, obligations, losses, claims, damages, penalties, actions,
judgments, suits, costs, reasonable and documented out-of-pocket expenses (including reasonable
and documented out-of-pocket attorneys’ fees and expenses) and disbursements of any kind or
nature whatsoever.
“Lien” means any mortgage, pledge, hypothecation, assignment, encumbrance, lien or
security interest (statutory or other), or preference, priority or other security agreement, charge or
preferential arrangement of any kind or nature whatsoever (including any conditional sale or other
title retention agreement, any financing lease having substantially the same economic effect as any
of the foregoing, and the filing authorized by the Borrower of any financing statement under the
UCC or comparable Law of any jurisdiction).
“Listed Collateral Loan” means a Collateral Loan for which three or more bids are quoted
and available from Loan Pricing Corporation, Mark-it Partners (formerly known as Loan
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X), Interactive Data Corporation or another nationally recognized broker-dealer or nationally
recognized quotation service requested by the Collateral Manager and approved from time to time
by the Administrative Agent and the Required Lenders.
“Listed Value” means, for any Listed Collateral Loan, the bid price for such Collateral
Loan most recently quoted by Loan Pricing Corporation, Mark-it Partners (formerly known as
Loan X) or Interactive Data Corporation and obtained by the Collateral Manager, or quoted by
another nationally recognized broker-dealer or nationally recognized quotation service as may be
approved from time to time by the Administrative Agent if so requested by the Borrower;
provided that, if the Collateral Manager reasonably believes that the price quoted by any such
source is based on less than three bona fide bids, then the Collateral Manager, by notice to the
Administrative Agent, may determine the Listed Value in accordance with clause (b) of the
definition of Market Value.
“Loan Checklist” means an electronic or hard copy, as applicable, checklist in the form of
Exhibit G, delivered by the Collateral Manager on behalf of the Borrower to the Administrative
Agent and the Collateral Administrator, for each Collateral Loan, of all Related Documents to be
included within the respective loan file, which, unless otherwise specified as an original, shall be
a copy.
“Main Street” means Main Street Capital Corporation, a Maryland corporation.
“Majority Lenders” means, as of any date of determination, one or more Lenders having
aggregate Percentages greater than 50%. To the extent provided in Section 16.01(d), the
Percentage of any Defaulting Lender shall be disregarded in determining Majority Lenders at any
time.
“Margin Stock” has the meaning assigned to such term in Regulation U.
“Market Value” means, as of any date, for any Collateral Loan:
(a)
if such Collateral Loan is a Listed Collateral Loan as at such date, the
Listed Value of such Collateral Loan as at such date; and
(b)
lower of:
if such Collateral Loan is not a Listed Collateral Loan as of such date, the
(i) the fair market value of such Collateral Loan as reasonably
determined by the Collateral Manager in accordance with the Collateral
Management Standard; and
(ii)
the purchase price in respect of such Collateral Loan expressed as
an effective percentage of par less any loss reserves maintained by the Borrower
in respect of such Collateral Loan in accordance with GAAP.
“Material Adverse Effect” means (1) a material adverse effect on (a) the business, assets,
financial condition or operations of the Borrower or the Collateral Manager, either individually or
taken as a whole (excluding a decline in the asset value of the Borrower or a change in general
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market conditions or values of the loans and investments held by the Borrower), (b) the validity,
enforceability or collectability of this Agreement or any other Facility Document or the validity,
enforceability or collectability of the Collateral Loans or the Related Documents generally or any
material portion of the Collateral Loans or the Related Documents, (c) the rights and remedies of
the Administrative Agent, the Lenders and the other Secured Parties with respect to matters arising
under this Agreement or any other Facility Document, (d) the ability of each of the Borrower or
the Collateral Manager to perform its obligations under any Facility Document to which it is a
party, or (e) the status, existence, perfection, priority or enforceability of the Collateral Agent’s
Lien on the Collateral; provided that if a material adverse effect described in clause (b) or (d)
affects or impairs the rights and remedies of the Borrower with respect to the validity,
enforceability, legality or collectability of only a portion of the Collateral (and not as a whole),
such effects shall not constitute a Material Adverse Effect at any time that such affected Collateral
Loans are excluded from the Borrowing Base.
“Material Modification” means, with respect to any Collateral Loan, any amendment,
waiver, consent or modification of a Related Document with respect thereto (it being understood
that a release document or similar instrument executed or delivered in connection with a
disposition that is otherwise permitted under the applicable Related Documents shall not
constitute an amendment or modification to such Related Document) executed or effected after
the date on which such Collateral Loan is acquired by the Borrower, that:
(a)
reduces or waives one or more interest payments or permits any interest due
with respect to such Collateral Loan in cash to be deferred or capitalized and added to the
principal amount of such Collateral Loan (other than (i) any deferral or capitalization
already expressly permitted by the terms of its Related Documents or pursuant to the
application of a pricing grid or pursuant to benchmark replacement interest rate provisions,
in each case, as of the date such Collateral Loan was acquired by the Borrower); or (ii)
after giving effect to such modification (x) any such deferral or capitalization that does not
cause the limitation set forth in clause (f) of the Concentration Limitations to be exceeded
or (y) the Cash pay interest rate is equal to or greater than the highest applicable rate
specified in the proviso to the definition of Partial PIK Loan);
(b)
contractually or structurally subordinates such Collateral Loan by
operation of a priority of payments, turnover provisions or the transfer of assets in order
to limit recourse to the related Obligor;
(c)
substitutes or releases the underlying assets securing such Collateral Loan
(other than as expressly permitted by the Related Documents as of the date such Collateral
Loan was acquired by the Borrower) or releases any material guarantor or co-Obligor
from its obligations with respect thereto, and each such substitution or release materially
and adversely affects the value of such Collateral Loan (as determined by the
Administrative Agent in a commercially reasonable manner);
(d)
waives, extends or postpones any date fixed for any scheduled payment
(including at maturity) or mandatory prepayment of principal on such Collateral Loan; or
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(e)
reduces or forgives any principal amount of such Collateral Loan;
“Maximum Advance Rate Default Test” means a test that will be satisfied at any time if
(a) the aggregate outstanding principal balance of the Advances at such time is less than or equal
to (b) the Maximum Available Amount at such time multiplied by 105%.
“Maximum Advance Rate Test” means a test that will be satisfied at any time if (a) the
aggregate outstanding principal balance of the Advances at such time is less than or equal to (b)
the Maximum Available Amount at such time.
“Maximum Available Amount” means, on any date of determination, without duplication,
an amount equal to the least of:
(a)
the Facility Amount, minus the Revolving Exposure, plus the aggregate
amount on deposit in the Revolving Reserve Account;
(b)
the sum of:
(i)
Rate, minus
the Borrowing Base multiplied by the Weighted Average Advance
(ii)
the Net Aggregate Exposure Amount, plus
(iii)
Account, plus
the aggregate amount on deposit in the Principal Collection
(iv)
the aggregate amount on deposit in the Revolving Reserve
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provided that (i) any Collateral Loan subject to a Material Modification which subsequently
becomes a Credit Improved Loan shall no longer be considered to have been subject to a Material
Modification hereunder unless such Collateral Loan is subject to a subsequent Material
Modification; and (ii) the Collateral Manager shall be permitted, in accordance with the Collateral
Management Standard (and not with the intention of increasing availability or circumventing any
event or condition set forth in this Agreement), to reduce one or more interest payments, extend,
waive or postpone any date fixed for any scheduled payment of principal (including at maturity)
or waive, extend or reduce any mandatory prepayment of principal on a Collateral Loan, in each
case, in connection with a re-pricing, refinancing or other request reflecting market terms then
existing at such time (as determined by the Collateral Manager) or otherwise at the Obligor’s
request and not in connection with financial or operational difficulties affecting, or the credit
deterioration of, the related Obligor, in each case, without such modification constituting a
Material Modification hereunder so long as (x) after giving effect to such modification, each
Collateral Quality Test is satisfied (or if not satisfied, the level of compliance with such Collateral
Quality Test is maintained or improved), (y) on the date of such modification, such Collateral
Loan constitutes a Current Modified Loan (whether or not clause (dd) of the definition of Eligible
Collateral Loan is satisfied) and (z) such modification is not made to avoid (or does not have the
effect of avoiding) classification of such Collateral Loan as a Defaulted Collateral Loan.
Account; and
(c)
the sum of:
(i)
the
Aggregate
Collateral
Balance
(excludingunfunded
commitments pursuant to clause (d) of the definition thereof), minus
(ii)
the Minimum Equity Amount, plus
(iii)
Account, plus
the aggregate amount on deposit in the Principal Collection
(iv)
Account.
the aggregate amount on deposit in the Revolving Reserve
“Measurement Date” means, (i) the Closing Date, (ii) each Borrowing Date, and (iii) each
Monthly Report Determination Date.
“Minimum Equity Amount” means, at any time, the greater of (i) the lesser of (a)
$30,000,000 and (b) 30% of the Facility Amount and (ii) (a) during the Ramp-Up Period, the
Aggregate Collateral Balance of the Collateral Loans for the three largest Obligors (determined
by Aggregate Collateral Balance) (it being understood that multiple Collateral Loans from the
same Obligor and its Affiliates shall be treated as a single exposure) and (b) following the Ramp-
Up Period, the Aggregate Collateral Balance of the Collateral Loans for the fivefour largest
Obligors (determined by Aggregate Collateral Balance) (it being understood that multiple
Collateral Loans from the same Obligor and its Affiliates shall be treated as a single exposure).
“Money” has the meaning assigned to such term in Section 1-201(24) of the UCC.
“Monthly Asset Amount” means, for any Payment Date, an amount equal to the Aggregate
Principal Balance of all Collateral Loans calculated as the arithmetic average of the amounts of
the items described in such clauses on the first day and last day of such Collection Period.
“Monthly Report” has the meaning assigned to such term in Section 8.06(a).
“Monthly Report Determination Date” has the meaning assigned to such term in Section
8.06(a).
“Monthly Reporting Date” has the meaning assigned to such term in Section 8.06(a).
“Moody’s” means Moody’s Investors Service, Inc., together with its successors.
“Multiemployer Plan” means an employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA that is sponsored by the Borrower (or, with respect to the Collateral
Manager, by the Collateral Manager) or a member of its ERISA Group or to which the Borrower
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780461396 22723957
(or the Collateral Manager) or a member of its ERISA Group is obligated to make contributions
or has any liability.
“Net Aggregate Exposure Amount” means, at any time, the sum of (a) the product of (i)
the Unfunded Amount of each Eligible Collateral Loan (other than Defaulted Collateral Loans
and Haircut Collateral Loans) and (ii) 1 minus the Advance Rate related to such Collateral Loan
plus (b) the product of (i) the Unfunded Amount of each Haircut Collateral Loan (other than
Defaulted Collateral Loans) and (ii) 1 minus the Recovery Rate related to such Haircut Collateral
Loan plus (c) the Unfunded Amount of each Defaulted Collateral Loan and Ineligible Collateral
Loan.
“Non-Cash Paying PIK Loan” means a Collateral Loan that requires the Obligor to pay
either (i) none of the accrued and unpaid interest in Cash on a current basis, or (ii) only a portion
of the accrued and unpaid interest in Cash on a current basis such that the interest required to be
paid in Cash pursuant to the terms of the applicable Related Documents carries a current Cash
pay interest rate paid (x) at a floating rate of less than 2.50% per annum over the then-current
Benchmark (or applicable replacement index therefor) or (y) at a fixed rate of less than 6.0% per
annum.
“Non-U.S. Lender” has the meaning assigned to such term in Section 16.03(g).
“Notice of Borrowing” has the meaning assigned to such term in Section 2.02.
“Notice of Prepayment” has the meaning assigned to such term in Section 2.05.
“Obligations” means all indebtedness, whether absolute, fixed or contingent, at any time
or from time to time owing by the Borrower to any Secured Party or any Affected Person under
or in connection with this Agreement, any Fee Letter or any other Facility Document, including
obligations pursuant to the Agents’ Erroneous Payment Subrogation Rights, all amounts payable
by the Borrower in respect of the Advances, with interest thereon, and all other amounts payable
hereunder or thereunder by the Borrower.
“Obligor” means, in respect of any Collateral Loan, each Person obligated to pay
Collections in respect of such Collateral Loan, including any applicable guarantors; provided that
for purposes of determining the domicile of an Obligor for purposes of the definitions of
Concentration Limitation and Eligible Collateral Loan, the term “Obligor” shall only include the
Person in respect of which the Collateral Loan was principally underwritten.
“OFAC” means the U.S. Office of Foreign Assets Control.
“Other Connection Taxes” means, in the case of any Secured Party, any Taxes imposed
as a result of a present or former connection between such Secured Party and the jurisdiction
imposing such Tax (other than a connection arising solely from such Secured Party having
executed, delivered, become a party to, performed obligations under, received payments under,
received or perfected a security interest under, engaged in any other transaction pursuant to or
enforced this Agreement or any other Facility Document).
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780461396 22723957
“Other Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to any Facility Document, except any such Taxes that
are Other Connection Taxes imposed with respect to an assignment (other than an assignment
made pursuant to Section 16.03(h) or Section 2.17).
“Parent” means Main Street Capital Corporation, a Maryland corporation.
“Parent Collateral Loan” means any Collateral Loan sold and/or contributed by the
Parent to the Borrower pursuant to the Purchase and Contribution Agreement.
“Parent Collateral Loan Balance” means, as of any date of determination, an amount
equal to the Aggregate Principal Balance of all Parent Collateral Loans acquired by the Borrower
from the Parent prior to such date.
“Participant” means any Person to whom a participation is sold as permitted by Section
16.06(c).
“Participant Register” has the meaning assigned to such term in Section 16.06(c)(ii).
“Past Due Rate” has the meaning assigned to such term in the Lender Fee Letter.
“PATRIOT Act” has the meaning assigned to such term in Section 16.16.
“Payment Account” means the payment account of the Collateral Agent established
pursuant to Section 8.03(a).
“Payment Date” means (i) January 24, 2023 and (ii) the 25th day of each calendar month
commencing February 2023; provided that, if any such day is not a Business Day, then such
Payment Date shall be the next succeeding Business Day.
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor agency or
Person performing substantially the same functions.
“Percentage” of any Lender means, (a) with respect to any Lender party hereto on the
Closing Date, the percentage set forth opposite such Lender’s name on Schedule 1, as such
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780461396 22723957
“Partial PIK Loan” means a Collateral Loan that requires the Obligor to pay only a
portion of the accrued and unpaid interest in Cash on a current basis, the remainder of which is or
can be deferred and paid later; provided that the portion of such interest required to be paid in
Cash pursuant to the terms of the applicable Related Documents carries a current Cash pay interest
rate paid (x) at a floating rate of not less than 2.50% per annum over the then-current Benchmark
or (y) at a fixed rate of not less than 6.0% per annum; provided further that such Collateral Loan
shall not constitute a Partial PIK Loan if the portion of such interest required to be paid in Cash
pursuant to the terms of the applicable Related Documents carries a current Cash pay interest rate
paid (x) at a floating rate of not less than 5.04.0% per annum over the then-current Benchmark
or (y) at a fixed rate of not less than 8.0% per annum.
amount is reduced by a Lender Joinder Agreement entered into with a new Lender or by any
Assignment and Acceptance entered into by such Lender with an assignee or increased by any
Assignment and Acceptance entered into by such Lender with an assignor, or (b) with respect to
a Lender that has become a party hereto pursuant to an Assignment and Acceptance or a Lender
Joinder Agreement, the percentage set forth therein as such Lender’s Percentage, as such amount
is reduced by an Assignment and Acceptance or a Lender Joinder Agreement entered into between
such Lender and an assignee or increased by any Assignment and Acceptance or Lender Joinder
Agreement entered into by such Lender with an assignor.
“Periodic Term SOFR Determination Day” shall have the meaning set forth in the
definition of “Term SOFR”.
“Permitted Assignee” means (a) a Lender or any of its Affiliates or (b) any Person
managed by a Lender or any of its Affiliates.
“Permitted RIC Distributions” means, with respect to each taxable year, any distributions
determined by Main Street in good faith to be required to be made in order to maintain Main
Street’s tax status under Section 851 of the Code or to avoid the payment of any tax imposed
under Section 852(b)(1), Section 852(b)(3) or Section 4982 of the Code.
“Person” means an individual or a corporation (including a business trust), partnership,
trust, incorporated or unincorporated association, joint stock company, limited liability company,
government (or an agency or political subdivision thereof) or other entity of any kind.
“PIK Loan” means a Collateral Loan (other than a Partial PIK Loan) that permits the
Obligor thereon to defer or capitalize any portion of the accrued interest thereon.
“Plan” means 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 Code that is sponsored by the Borrower (or, with respect to the Collateral Manager, by the
Collateral Manager) or a member of its ERISA Group or to which the Borrower (or the Collateral
Manager) or a member of its ERISA Group is obligated to make contributions or has any liability.
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780461396 22723957
“Permitted Liens” means: (a) Liens created in favor of the Collateral Agent hereunder or
under the other Facility Documents for the benefit of the Secured Parties; (b) Liens imposed by
any Governmental Authority for taxes, assessments or charges not yet delinquent or which are
being contested in good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower in accordance with GAAP; (c) with respect
to the underlying collateral for any Collateral Loan, Liens imposed by Law, such as
materialmen’s, warehousemen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and
other similar Liens upon such underlying assets, arising by operation of law in the ordinary course
of business for sums that are not overdue or are being contested in good faith; (d) with respect to
any Collateral Loan, Liens on the underlying collateral for such Collateral Loan permitted under
the Related Documents that are customary for similar Collateral Loans and consistent with the
Collateral Management Standard; and (e) customary restrictions on transfer of such Collateral
Loans set forth in the applicable Related Documents.
“Plan Asset Rule” has the meaning assigned to such term in Section 4.01(n).
“Potential Collateral Manager Termination Event” means any event which, with the
passage of time, the giving of notice, or both, would constitute a Collateral Manager Termination
Event.
“Potential Terminated Lender” has the meaning assigned to such term in Section 2.17(a).
“Prime Rate” means the rate announced by Truist from time to time as its prime rate in
the United States, such rate to change as and when such designated rate changes. The Prime Rate
is not intended to be the lowest rate of interest charged by Truist in connection with extensions of
credit to debtors. Truist may make commercial loans or other loans at rates of interest at, above
or below the Prime Rate. Notwithstanding anything herein to the contrary, in no event shall the
Prime Rate be less than 0.00%.
“Principal Balance” means, with respect to any Collateral Loan, as of any date of
determination, the outstanding principal amount of such Collateral Loan (excluding any
capitalized interest).
“Principal Collection Account” has the meaning assigned to such term in Section 8.02(a).
“Principal Proceeds” means, with respect to any Collection Period or the related
Determination Date, all amounts received by the Borrower during such Collection Period that do
not constitute Interest Proceeds, including unapplied proceeds of the Advances and any Cash
equity contributions (unless specified by the Collateral Manager to constitute Interest Proceeds in
accordance with Section 10.05).
“Priority of Payments” has the meaning assigned to such term in Section 9.01(a).
“Private Authorizations” means all franchises, permits, licenses, approvals, consents and
other authorizations of all Persons (other than Governmental Authorities).
“Proceeds” has, with reference to any asset or property, the meaning assigned to it under
Section 9-102(a)(64) of the UCC and, in any event, shall include any and all amounts from time
to time paid or payable under or in connection with such asset or property.
“Purchase and Contribution Agreement” means that certain Purchase and Contribution
Agreement dated as of the Closing Date between the Parent, as seller, and the Borrower, as buyer.
“QIB” has the meaning assigned to such term in Section 16.06(e).
“Qualified Institution” means (i) Western Alliance Trust Company, N.A. or (ii) a
depository institution or trust company organized under the Laws of the United States of America
or any one of the States thereof or the District of Columbia (or any domestic branch of a foreign
bank), (i)(a) that has either (1) a long-term unsecured debt rating of “A” or better by S&P
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780461396 22723957
and “A2” or better by Moody’s or (2) a short-term unsecured debt rating or certificate of deposit
rating of “A-1” or better by S&P or “P-1” or better by Moody’s, (b) the parent corporation of
which has either (1) a long-term unsecured debt rating of “A” or better by S&P and “A2” or better
by Moody’s or (2) a short-term unsecured debt rating or certificate of deposit rating of “A-1” or
better by S&P and “P-1” or better by Moody’s or (c) is otherwise acceptable to the Administrative
Agent and (ii) the deposits of which are insured by the Federal Deposit Insurance Corporation.
“Qualified Purchaser” has the meaning assigned to such term in Section 16.06(e).
“Ramp-Up Period” means the period beginning on the Closing Date and ending upon the
earliest of: (a) the date on which the Aggregate Collateral Balance first meets or exceeds the
Facility Amount then in effect; (b) the date that is the six-month anniversary of the Closing Date;
and (c) the date on which the Borrower provides written notice to the Administrative Agent that
the Ramp-Up Period has ended.
“Recovery Rate” means, with respect to any Collateral Loan, the “Recovery Rate” for
such Collateral Loan as set forth opposite such asset type below:
First Lien Loans – 50%
Split First Lien Loans – 50%
Split Lien Loans – 50%
Second Lien Loans – 30%
“Register” has the meaning assigned to such term in Section 16.06(d).
“Regulation T”, “Regulation U” and “Regulation X” mean Regulation T, U and X,
respectively, of the Board of Governors of the Federal Reserve System, as in effect from time to
time.
“Reinvestment Period” means the period from and including the Closing Date to and
including the earlier of (a) the Scheduled Reinvestment Period End Date (including any extension
pursuant to the definition thereof) and (b) at the election of the Administrative Agent or the
Required Lenders, the date of the termination of the Commitments pursuant to Section 6.01.
“Related Documents” means, with respect to any Collateral Loan, (a) the loan or credit
agreement evidencing such Collateral Loan, (b) the principal security agreement, and (c) if the
same can be obtained without undue expense or effort, all other material documents evidencing,
guaranteeing, securing, governing or giving rise to such Collateral Loan (including those
identified on the Loan Checklist).
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal
Reserve Bank of New York, or a committee officially endorsed or convened by the Federal
Reserve Board and/or the Federal Reserve Bank of New York, or any successor thereto.
“Relevant Test Period” means, with respect to any Collateral Loan, the relevant test
period for the calculation of EBITDA, Fixed Charge Coverage Ratio, Senior Leverage Ratio or
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780461396 22723957
Total Leverage Ratio, as applicable, for such Collateral Loan in the applicable Related Documents
or, if no such period is provided for therein, for Obligors delivering monthly financial statements,
each period of the last twelve consecutive reported calendar months, and for Obligors delivering
quarterly financial statements, each period of the last four consecutive reported fiscal quarters of
the principal Obligor on such Collateral Loan; provided that, with respect to any Collateral Loan
for which the relevant test period is not provided for in the applicable Related Documents, if an
Obligor is a newly-formed entity as to which twelve consecutive calendar months have not yet
elapsed, “Relevant Test Period” shall initially include the period from the date of formation of
such Obligor or closing date of the applicable Collateral Loan to the end of the twelfth calendar
month or fourth fiscal quarter (as the case may be) from the date of formation or closing, as
applicable, and shall subsequently include each period of the last twelve consecutive reported
calendar months or four consecutive reported fiscal quarters (as the case may be) of such Obligor.
“Replacement Lender” has the meaning assigned to such term in Section 2.17(a).
“Requested Amount” has the meaning assigned to such term in Section 2.02.
“Required Lenders” means, as of any date of determination, one or more Lenders having
aggregate Percentages greater than or equal to 66 2/3%; provided that if there are two (2) or more
Lenders party hereto that are not Affiliates as of the applicable date of determination, then at least
two such Lenders shall be required to constitute the Required Lenders. To the extent provided in
Section 16.01(d), the Percentage of any Defaulting Lender shall be disregarded in determining
Required Lenders at any time.
“Resignation Effective Date” means June 9, 2025 at 12:01 a.m. (New York City time).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority.
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“Responsible Officer” means (a) in the case of (i) a corporation or (ii) a partnership or
(iii) a limited liability company that, in each case, pursuant to its Constituent Documents, has
officers, any chief executive officer, chief financial officer, chief administrative officer, managing
director, president, senior vice president, vice president, assistant vice president, treasurer, director
or manager, and, in any case where two Responsible Officers are acting on behalf of such entity,
the second such Responsible Officer may be a secretary or assistant secretary (provided that a
director or manager (other than an Independent Manager) of the Borrower shall be a Responsible
Officer regardless of whether its Constituent Documents provide for officers), (b) without
limitation of clause (a)(ii), in the case of a limited partnership, the Responsible Officer of the
general partner, acting on behalf of such general partner in its capacity as general partner, (c)
without limitation of clause (a)(iii), in the case of a limited liability company, any Responsible
Officer of the sole member or managing member or manager, acting on behalf of the sole member,
managing member or manager in its capacity as sole member, managing member or manager, (d)
in the case of a trust, the Responsible Officer of the trustee, acting on behalf of such trustee in its
capacity as trustee, (e) an “authorized signatory” or “authorized officer” that has been so
authorized pursuant to customary corporate proceedings, limited partnership proceedings, limited
liability company proceedings or trust proceedings, as
the case may be, and that has responsibilities commensurate with the matter for which it is acting
as a Responsible Officer: the initial “authorized signatories” of the Borrower, the Parent and the
Collateral Manager are set forth on Schedule 7 hereto (as such Schedule 7 may be modified from
time to time by written notice), (f) in the case of the Administrative Agent, an officer of
Administrative Agent, as applicable, having direct responsibility for the administration of this
Agreement, (g) in the case of the Custodian, the Document Custodian or the Collateral Agent, as
applicable, (i) prior to the Resignation Effective Date, an officer assigned to the Agency & Trust
Division (or any successor group) of the Custodian, the Document Custodian or the Collateral
Agent, as applicable, including any vice president of the Custodian, the Document Custodian or
the Collateral Agent customarily performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom any matter is referred within such
Agency & Trust Division (or any successor group), because of such person’s knowledge of and
familiarity with the particular subject and in each case having direct responsibility for the
administration of this Agreement and (ii) on and after the Resignation Effective Date, an officer
of the Custodian, the Document Custodian or the Collateral Agent, as applicable, including any
vice president of the Custodian, the Document Custodian or the Collateral Agent, to whom any
matter is referred, because of such person’s knowledge of and familiarity with the particular
subject and in each case having direct responsibility for the administration of this Agreement
“Retransfer Date” has the meaning assigned to such term in Section 10.03(b)(vi).
“Review Criteria” is defined in Section 13.02(b)(i).
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and (h) in the case of the Collateral Administrator, any officer authorized to act for and on behalf
of the Collateral Administrator or to whom any matter is referred within such Person because of
such person’s knowledge of and familiarity with the particular subject and, in each case, having
direct responsibility for the administration of this Agreement.
“Restricted Payments” means the declaration of any distribution or dividends or the
payment of any other amount (including in respect of redemptions permitted by the Constituent
Documents of the Borrower) to any shareholder, partner, member or other equity investor in the
Borrower on account of any share, membership interest, partnership interest or other equity
interest in respect of the Borrower, or the payment on account of, or the setting apart of assets for
a sinking or other analogous fund for, or the purchase or other acquisition of any class of stock of
or other equity interest in the Borrower or of any warrants, options or other rights to acquire the
same (or to make any “phantom stock” or other similar payments in the nature of distributions or
dividends in respect of equity to any Person), whether now or hereafter outstanding, either directly
or indirectly, whether in cash, property (including marketable securities), or any payment or setting
apart of assets for the redemption, withdrawal, retirement, acquisition, cancellation or termination
of any share, membership interest, partnership interest or other equity interest in respect of the
Borrower. For the avoidance of doubt, (x) payments and reimbursements due to the Collateral
Manager in accordance with this Agreement or any other Facility Document do not constitute
Restricted Payments, and (y) distributions by the Borrower to holders of its membership interests
of Collateral Loans or of cash or other proceeds relating thereto which have been sold to,
repurchased or substituted by, the Borrower in accordance with this Agreement shall not constitute
Restricted Payments.
“Revolving Collateral Loan” means any Collateral Loan (other than a Delayed Drawdown
Collateral Loan) that is a loan (including revolving loans, funded and unfunded portions of
revolving credit lines and letter of credit facilities, unfunded commitments under specific facilities
and other similar loans and investments) that by its terms may require one or more future advances
to be made to the related Obligor by the Borrower and which provides that such borrowed money
may be repaid and re-borrowed from time to time; provided that any such Collateral Loan will be
a Revolving Collateral Loan only until all commitments to make advances to the Obligor expire
or are terminated or irrevocably reduced to zero.
“Revolving Exposure” means, at any time, the sum of the aggregate Unfunded Amount
of each Collateral Loan (including each Ineligible Collateral Loan and each Defaulted Collateral
Loan) at such time.
“Revolving Reserve Account” means the account established pursuant to Section 8.04.
“Revolving Reserve Required Amount” has the meaning assigned to such term in Section
8.04.
“RIC” or “regulated investment company” shall mean an investment company or
business development company that qualifies for the special tax treatment provided for by
subchapter M of the Code.
“S&P” means S&P Global Inc., and any successor thereto.
“Sanctioned Country” means, at any time, a country or territory that is, or whose
government is, the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations
Security Council, the European Union, any EU member state, His Majesty’s Treasury of the
United Kingdom or the Government of Canada, (b) any Person located, organized or resident in a
Sanctioned Country or (c) any Person controlled by any such Person.
“Sanctions” means economic or financial sanctions or trade embargoes administered or
enforced from time to time by (a) the U.S. government, including those administered by OFAC
or the U.S. Department of State, (b) the United Nations Security Council, the European Union or
His Majesty’s Treasury of the United Kingdom or (c) the Government of Canada, including those
administered by Global Affairs Canada, Public Safety Canada, and the Department of Justice.
“Scheduled Distribution” means, with respect to any Collateral Loan, for each Due Date,
the scheduled payment of principal and/or interest and/or fees due on such Due Date with respect
to such Collateral Loan.
“Scheduled Reinvestment Period End Date” means September 27, 20272028 (or such
later date as may be agreed by the Borrower, the Administrative Agent and each Lender).
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“Scheduled Split First Lien Loan” means a Collateral Loan set forth on Schedule 8 hereto
that (a) would be characterized as a First Lien Loan but which has been structured with a credit
facility that is senior in right of payment thereto and (b) satisfies the following criteria, as of the
date of origination by Main Street: (i) the aggregate commitment of the senior credit facility is
less than or equal to 25.0% of the total first lien debt (including the Split First Lien Loan and the
senior credit facility as measured by aggregate first lien loans and commitments), and (ii) the
senior credit facility portion (as measured by commitment) has a trailing twelve-month senior
debt to EBITDA ratio of less than or equal to 0.5x.
“Second Amendment Date” means September 26, 2024.
“Second Lien Loan” means any Collateral Loan (for purposes of this definition, a
“loan”) that:
(a)
Lien Loan); or
is a First Lien/Last Out Loan (other than a Split First Lien Loan or a Split
(b)
meets the following criteria:
(i)
is not (and is not expressly permitted by its terms to become)
subordinate in right of payment to any other obligation for borrowed money of the
Obligor of such loan (excluding customary terms applicable to a second lien lender
under customary intercreditor provisions, such as after an event of default in
connection with a first priority perfected Lien or with respect to the liquidation of
the Obligor or of specified collateral);
(ii)
is secured by a valid second priority perfected Lien in, to or on
specified collateral securing the Obligor’s obligations under such loan (whether or
not such loan is also secured by any higher or lower priority Lien on other
collateral), but subject to purchase money Liens and customary Liens for taxes or
regulatory charges not then due and payable and other Permitted Liens under the
Related Documents; provided that such Permitted Liens do not directly secure
indebtedness for borrowed money;
(iii)
is secured, pursuant to such second priority perfected Lien, by
collateral having a value (determined as set forth below) that is adequate (in the
commercially reasonable judgment of the Collateral Manager) to repay such
Collateral Loan in accordance with its terms plus the aggregate Principal Balances
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“Scheduled Split Lien Loan” means a Collateral Loan set forth on Schedule 9 hereto that
(a) would be characterized as a First Lien Loan but which has been structured with a credit facility
that is senior in right of payment with respect to current assets and (b) satisfies the following
criteria, as of the date of origination by Main Street: (i) the aggregate commitment of the senior
credit facility is less than or equal to 25.0% of the total first lien debt (including the Split Lien
Loan and the senior credit facility as measured by aggregate first lien loans and commitments),
and (ii) the senior credit facility portion (as measured by commitment) has a trailing twelve-month
senior debt to EBITDA ratio of less than or equal to 1.0x.
of all other loans of equal or higher seniority secured by a first or second Lien in
the same collateral; and
(iv)
is not a loan which is secured solely or primarily by the common
stock of its Obligor or any of its Affiliates; provided that the limitation set forth in
The determination as to whether clause (b)(iii) of this definition is satisfied shall be based
on both (a) an analysis of the enterprise value (including, without limitation, its general financial
condition, ability to generate cash flow available for debt service and other demands for that cash
flow) of the related Obligor by the Collateral Manager or an Appraisal or other valuation (which
may be an internal Appraisal or valuation performed by the Collateral Manager) performed on or
about the date of acquisition by the Borrower or of the most recent restructuring of such Collateral
Loan, and (b) the Collateral Manager’s judgment at the time such Collateral Loan is acquired by
the Borrower.
“SEC” means the United States Securities and Exchange Commission or any
Governmental Authority succeeding to any or all of the functions thereof.
“Secured Parties” means the Administrative Agent, the Collateral Agent, the Collateral
Administrator, the Document Custodian, the Custodian (including Citibank, N.A. in its capacity
as Securities Intermediary under the Account Control Agreement), each Lender, the Collateral
Manager, and, if applicable, the Successor Collateral Manager.
“Secured Party Representatives” has the meaning assigned to such term in Section
16.09.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, all as from time to time in effect.
“Securities Intermediary” has the meaning assigned to it in Section 8-102(a)(14) of the
UCC.
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this subclause (iv) shall not apply with respect to a Collateral Loan made to a parent
entity that is secured solely or primarily by the stock of one or more of the
subsidiaries of such parent entity to the extent that either (1) in the Collateral
Manager’s reasonable judgment, the applicable Related Documents of such
Collateral Loan limit the activities of such Obligor or such subsidiary, as
applicable, in such a manner so as to provide a reasonable expectation that (x) cash
flows from such Obligor or from such subsidiary and such Obligor, as applicable,
are sufficient to provide debt service on such Collateral Loan and (y) the assets of
such Obligor or of such subsidiary and such Obligor, as applicable, would be
available to repay principal of and interest on such Collateral Loan in the event of
the enforcement of such Related Documents or (2) the granting by any such
subsidiary of a Lien on its own property would violate law or regulations applicable
to such subsidiary (whether the obligation secured is such Collateral Loan or any
other similar type of indebtedness owing to third parties).
“Security Entitlement” has the meaning assigned to such term in Section 8-102(a)(17) of
the UCC.
“Senior Collateral Management Fee” means, for any Collection Period, an amount equal
to the product of (a) 0.25% per annum, multiplied by (b) the Monthly Asset Amount (calculated
on the basis of a 360 day year and the actual number of days elapsed in the related Collection
Period).
“Signature Law” has the meaning assigned to such term in Section 16.05.
“SOFR” means a rate per annum 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 Borrowing” shall mean a Borrowing that bears interest at a rate based on Term
SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.
“Solvent” means, as to any Person, such Person is not “insolvent” within the meaning of
Section 101(32) of the Bankruptcy Code or Section 271 of the Debtor and Creditor Law of the
State of New York.
“Split First Lien Loan” means (x) a Scheduled Split First Lien Loan or (y) a Collateral
Loan that (a) would be characterized as a First Lien Loan but which has been structured with a
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“Senior Leverage Ratio” means, with respect to any Collateral Loan for any Relevant Test
Period, the meaning of “Senior Leverage Ratio”, “Senior Net Leverage Ratio”, “First Lien
Leverage Ratio”, “First Lien Net Leverage Ratio” or any comparable term relating to first lien
senior secured (or such applicable lien or applicable level within the capital structure)
indebtedness defined in the Related Documents for such Collateral Loan, or the ratio of (a) first
lien senior secured (or such applicable lien or applicable level within the capital structure)
indebtedness minus Unrestricted Cash to (b) EBITDA as calculated by the Collateral Manager in
good faith using information from and calculations consistent with the relevant financial models,
pro forma financial statements, compliance statements and financial reporting packages provided
by the relevant Obligor as per the requirements of the Related Documents.
“Specified Eligible Investment” means an Eligible Investment that is available to the
Collateral Agent, specified by the Collateral Manager to the Collateral Agent (with a copy to the
Administrative Agent) on or prior to the initial Borrowing Date; provided that, so long as no
Default or Event of Default shall have occurred and then be continuing, at any time with not less
than five Business Days’ notice to the Collateral Agent (with a copy to the Administrative Agent)
the Collateral Manager may (and, if the-then Specified Eligible Investment is no longer available
to the Collateral Agent, shall) designate another Eligible Investment that is available to the
Collateral Agent to be the Specified Eligible Investment for purposes hereof. After the occurrence
of a Default or Event of Default, a Specified Eligible Investment shall mean an Eligible
Investment which has been selected by the Administrative Agent and specified to the Collateral
Agent.
credit facility that is senior in right of payment thereto and (b) satisfies the following criteria: (i)
the aggregate commitment of the senior credit facility is less than or equal to 25.0% of the total
first lien debt (including the Split First Lien Loan and the senior credit facility as measured by
aggregate first lien loans and commitments), and (ii) the senior credit facility portion (as measured
by commitment) has a trailing twelve-month senior debt to EBITDA ratio of less than or equal to
0.5x. Collateral Loans that do not meet the requirements of this definition may be categorized as
(subject to satisfying the applicable criteria) either (a) Split Lien Loans or (b) Second Lien Loans.
“Split Lien Loan” means a (x) a Scheduled Split Lien Loan or (y) Collateral Loan that (a)
would be characterized as a First Lien Loan but which has been structured with a credit facility
that is senior in right of payment with respect to current assets and (b) satisfies the following
criteria: (i) the aggregate commitment of the senior credit facility is less than or equal to 25.0% of
the total first lien debt (including the Split Lien Loan and the senior credit facility as measured by
aggregate first lien loans and commitments), and (ii) the senior credit facility portion (as measured
by commitment) has a trailing twelve-month senior debt to EBITDA ratio of less than or equal to
1.0x. Collateral Loans that do not meet the requirements of this definition shall be deemed Second
Lien Loans.
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“Stretch Senior Loan” means any Collateral Loan (a) that is secured by a valid and
perfected first priority Lien on substantially all of the Obligor’s assets constituting the underlying
collateral for such Collateral Loan, subject to Permitted Liens, (b) for which no other secured
indebtedness of the Obligor secured by a lien on substantially all of the Obligor’s assets and senior
to the Lien of the Collateral Loan exists or is outstanding (subject to Permitted Liens), and
(c) for which the payment obligation of the Obligor on such Collateral Loan is either senior to, or
pari passu with, all other indebtedness of such Obligor. For purposes of determining the Advance
Rate for a Stretch Senior Loan, (i) if the Obligor of such Stretch Senior Loan is a Tier 1 Obligor
at the time of acquisition by the Borrower, then (a) that portion of such Stretch Senior Loan which,
when included in the total indebtedness of such Obligor, results in a Total Leverage Ratio of 5.50x
or less at the time of acquisition by the Borrower shall be treated as a First Lien Loan and (b) that
portion of such Stretch Senior Loan which, when included in the total indebtedness of such
Obligor, results in a Total Leverage Ratio greater than 5.50x (but less than or equal to 6.50x) at
the time of acquisition by the Borrower shall be treated as a Second Lien Loan; (ii) if the Obligor
of such Stretch Senior Loan is a Tier 2 Obligor at the time of acquisition by the Borrower, then (a)
that portion of such Stretch Senior Loan which, when included in the total indebtedness of such
Obligor, results in a Total Leverage Ratio of 4.75x or less at the time of acquisition by the
Borrower shall be treated as a First Lien Loan and (b) that portion of such Stretch Senior Loan
which, when included in the total indebtedness of such Obligor, results in a Total Leverage Ratio
greater than 4.75x (but less than or equal to 5.75x) at the time of acquisition by the Borrower shall
be treated as a Second Lien Loan; and (iii) if the Obligor of such Stretch Senior Loan is a Tier 3
Obligor at the time of acquisition by the Borrower, then (a) that portion of such Stretch Senior
Loan which, when included in the total indebtedness of such Obligor, results in a Total Leverage
Ratio of 4.25x or less at the time of acquisition by the Borrower shall be treated as a First Lien
Loan and (b) that portion of such Stretch Senior Loan which, when included in the total
indebtedness of such Obligor, results in a Total Leverage Ratio greater than 4.25x (but less than
or equal to 5.00x) at the time of acquisition by the Borrower
shall be treated as a Second Lien Loan. For all other purposes, a Stretch Senior Loan shall be
considered a First Lien Loan.
“Structured Finance Obligation” means any debt obligation owing by a finance vehicle
that is secured directly and primarily by, primarily referenced to, and/or primarily representing
ownership of, a pool of receivables or a pool of other assets, including collateralized debt
obligations, residential mortgage-backed securities, commercial mortgage-backed securities,
other asset-backed securities, “future flow” receivable transactions and other similar obligations;
provided that loans to financial service companies, factoring businesses, health care providers and
other genuine operating businesses do not constitute Structured Finance Obligations.
“Subordinated Collateral Management Fee” means, for any Collection Period, an amount
equal to the product of (a) 0.25% per annum, multiplied by (b) the Monthly Asset Amount
(calculated on the basis of a 360-day year and the actual number of days elapsed in the related
Collection Period).
“Substitute Loan” has the meaning assigned to such term in Section 10.03.
“Successor Collateral Manager” has the meaning assigned to such term in Section
11.08(b).
“Swingline Advance” means any swingline loan made by the Swingline Lender to the
Borrower pursuant to Section 2.01 and all such swingline loans collectively as the context
requires.
“Swingline Commitment” means the commitment of the Swingline Lender to fund
Swingline Advances subject to the terms and conditions herein, in an amount not greater than
$20,000,000, as such amount may be reduced, increased or assigned from time to time pursuant
to the provisions of this Agreement. The Swingline Commitment is a sub-limit of the
Commitment of the Swingline Lender, in its capacity as a Lender hereunder, and is not in addition
thereto. Each Lender shall purchase a risk participation interest in any Swingline Advance.
“Swingline Lender” has the meaning assigned such term in the introduction of this
Agreement.
“Swingline Refund Date” has the meaning assigned to such term in Section 2.15(a).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
taxing Governmental Authority, including any interest, additions to tax or penalties applicable
thereto.
“Term SOFR” means,
(a)
for any calculation with respect to a SOFR Borrowing, the Term SOFR
Reference Rate for a tenor comparable to the applicable Interest Accrual Period on the day
(such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S.
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Government Securities Business Days prior to the first day of such Interest Accrual Period,
as such rate is published by the Term SOFR Administrator; provided, that if as of 5:00
p.m. 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 Borrowing other than a SOFR
Borrowing 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 that if as of 5:00 p.m. 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;
provided, that if Term SOFR determined as provided above (including pursuant to the proviso
under clause (a) or (b) above) is less than the Floor, then Term SOFR shall be deemed to be the
Floor.
“Term SOFR Administrator” means the CME Group Benchmark Administration Limited
(CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the
Administrative Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the rate per annum determined by the
Administrative Agent, based on the rate published by the Term SOFR Administrator, as the
forward-looking term rate based on SOFR.
“Third Amendment Date” means April 24, 2025.
“Tier 1 Obligor” means an Obligor of any Collateral Loan with EBITDA greater than or
equal to $50,000,00040,000,000, determined at the most recent to occur of (i) the date such
Collateral Loan is acquired by the Borrower and (ii) the date of any subsequent increase or
modification to such Collateral Loan resulting from a material acquisition by the associated
Obligor.
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“Tier 2 Obligor” means an Obligor of any Collateral Loan with either (a) EBITDA greater
than or equal to $20,000,000 or (b) (i) EBITDA greater than $5,000,000 and less than
$20,000,000 and (ii) a Fixed Charge Coverage Ratio of greater than or equal to 1.25x and a Debt
to Capitalization Ratio of no more than 65.0% (in each case, determined at the most recent to
occur of (i) the date such Collateral Loan is acquired by the Borrower and (ii) the date of any
subsequent increase or modification to such Collateral Loan resulting from a material acquisition
by the associated Obligor).
“Tier 3 Obligor” means an Obligor that does not meet the criteria of either a Tier 1
Obligor or a Tier 2 Obligor.
“Total Leverage Ratio” means, with respect to any Collateral Loan for any Relevant Test
Period, the meaning of “Total Leverage Ratio”, “Total Net Leverage Ratio” or any comparable
term relating to total indebtedness defined in the Related Documents for such Collateral Loan or
the ratio of (a) total indebtedness minus Unrestricted Cash to (b) EBITDA as calculated by the
Collateral Manager in good faith using information from and calculations consistent with the
relevant financial models, pro forma financial statements, compliance statements and financial
reporting packages provided by the relevant Obligor as per the requirements of the Related
Documents.
“Trade Ticket” means any trade ticket, confirmation of trade, instruction to post or to
commit to the trade or similar instrument or document or other written instruction (including by
email or other electronic communication or file transfer protocol).
“Truist” has the meaning assigned to such term in the introduction to this Agreement.
“UCC” means the New York Uniform Commercial Code; provided that if, by reason of
any mandatory provisions of Law, the perfection, the effect of perfection or non-perfection or
priority of the security interests granted to the Collateral Agent pursuant to this Agreement are
governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States of
America other than the State of New York, then “UCC” means the Uniform Commercial Code as
in effect from time to time in such other jurisdiction for purposes of such perfection, effect of
perfection or non-perfection or priority.
“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 Benchmark Replacement excluding
the Benchmark Replacement Adjustment.
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“Uncertificated Security” has the meaning assigned to such term in Section 8-102(a)(18)
of the UCC.
“Unfunded Amount” means, with respect to any Collateral Loan that constitutes a
Revolving Collateral Loan or a Delayed Drawdown Collateral Loan, as of any date of
determination, the unfunded commitment of the Borrower with respect to such Collateral Loan as
of such date.
“Unrestricted Cash” has the meaning assigned to the term “Unrestricted Cash” or any
comparable term defined in the Related Documents for each Collateral Loan, and in any case that
“Unrestricted Cash” or such comparable term is not defined in such Related Documents, all cash
available for use for general corporate purposes and not held in any reserve account or legally or
contractually restricted for any particular purposes or subject to any lien (other than blanket liens
permitted under or granted in accordance with such Related Documents).
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii)
a Sunday or (iii) 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.
“U.S. Person” means any Person that is a “United States person” as defined in Section
7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section
16.03(g)(iii).
“Volcker Rule” means Section 13 of the U.S. Bank Holding Company Act of 1956, as
amended, and the applicable rules and regulations thereunder.
“Weighted Average Advance Rate” means, as of any date of determination, the weighted
average of the Advance Rates applicable to the Eligible Collateral Loans on such day, weighted
according to the proportion of the Borrowing Base that each such Eligible Collateral Loan
included in the Collateral represents.
“Weighted Average Coupon” means, as of any date, an amount equal to the number,
expressed as a percentage, obtained by:
(a)
summing the products of (i) the stated interest coupon on each Fixed Rate
Loan multiplied by (ii) the Principal Balance of such Fixed Rate Loan; and
(b)
dividing such sum by the Aggregate Principal Balance of all Fixed Rate
Loans as of such date.
“Weighted Average Coupon Test” means a test that will be satisfied on any date of
determination if the Weighted Average Coupon equals or exceeds 8.00%.
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“Weighted Average EBITDA” means, as of any date of determination, the weighted
average of EBITDA of the Obligors related to the Eligible Collateral Loans on such day, weighted
according to the proportion of the Principal Balance that each such Eligible Collateral Loan
included in the Collateral represents.
“Weighted Average EBITDA Test” means a test that will be satisfied on any date of
determination if the Weighted Average EBITDA equals or exceeds $15,000,000.
“Weighted Average Floating Spread” means, as of any date, the number obtained by
dividing:
(a)
the amount equal to (i) the Aggregate Funded Spread (with respect to all
Floating Rate Loans) plus (ii) the Aggregate Unfunded Spread, by
(b)the Aggregate Principal Balance of all Floating Rate Loans as of such
date.
“Weighted Average Life” means, as of any date of determination with respect to all
Eligible Collateral Loans, the number of years following such date obtained by:
(a)
summing the products of (i) the Average Life at such time of each Eligible
Collateral Loan multiplied by (ii)(A) the Principal Balance plus (B) the Unfunded Amount
of such Collateral Loan; and
(b)
dividing such sum by the sum of the Aggregate Principal Balance plus the
Unfunded Amount of all Eligible Collateral Loans as of such date.
For the purposes of the foregoing, the “Average Life” is, on any date of
determination with respect to any Eligible Collateral Loan, the quotient obtained by
dividing (i) the sum of the products of (A) the number of years (rounded to the nearest one
hundredth thereof) from such date of determination to the respective dates of each
successive Scheduled Distribution of principal of such Collateral Loan and (B) the
respective amounts of principal of such Scheduled Distributions by (ii) the sum of all
successive Scheduled Distributions of principal on such Collateral Loan.
“Weighted Average Life Test” means a test that will be satisfied on any date of
determination if the Weighted Average Life of the Collateral Loans as of such date is less than or
equal to 6.0 years.
“Weighted Average Spread Test” means a test that will be satisfied on any date of
determination if the Weighted Average Floating Spread equals or exceeds 5.004.50%.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.
“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
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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.
“Zero Coupon Obligation” means a Collateral Loan that does not provide for periodic
payments of interest in Cash or that pays interest only at its stated maturity.
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Section 1.02. Rules of Construction. For all purposes of this Agreement and the other
Facility Documents, except as otherwise expressly provided or unless the context otherwise
requires (i) singular words shall connote the plural as well as the singular and vice versa (except
as indicated), as may be appropriate, (ii) the words “herein,” “hereof” and “hereunder” and other
words of similar import used in any Facility Document refer to such Facility Document as a whole
and not to any particular article, schedule, section, paragraph, clause, exhibit or other subdivision
thereof, (iii) the headings, subheadings and table of contents set forth in any Facility Document
are solely for convenience of reference and shall not constitute a part of such Facility Document
nor shall they affect the meaning, construction or effect of any provision thereof, (iv) references
in any Facility Document to “include” or “including” shall mean include or including, as
applicable, without limiting the generality of any description preceding such term, and for
purposes thereof the rule of ejusdem generis shall not be applicable to limit a general statement,
followed by or referable to an enumeration of specific matters, to matters similar to those
specifically mentioned, (v) each of the parties to this Agreement and its counsel have reviewed
and revised, or requested revisions to, this Agreement, and the rule of construction that any
ambiguities are to be resolved against the drafting party shall be inapplicable in the construction
and interpretation of this Agreement, (vi) any definition of or reference to any Facility Document,
agreement, instrument or other document shall be construed as referring to such Facility
Document, agreement, instrument or other document as from time to time amended, restated,
supplemented or otherwise modified (subject to any restrictions on such amendments,
restatements, supplements or modifications set forth herein or therein), (vii) any reference in any
Facility Document, including the introduction and recitals to such Facility Document, to any
Person shall be construed to include such Person’s successors and assigns (subject to any
restrictions set forth herein or in any other applicable agreement), (viii) any reference to any Law
herein shall refer to such Law as amended, modified, replaced or supplemented from time to time,
(ix) any Event of Default or Collateral Manager Termination Event shall be continuing until
expressly waived in writing by the requisite Lenders, (x) unless otherwise provided in any Facility
Document, all references to time of day refer to Eastern standard time or Eastern daylight savings
time, as in effect in New York City on such day, (xi) when the performance of any covenant, duty
or obligation under any Facility Document is required to be performed on a day which is not a
Business Day, the date of such performance shall extend to the next succeeding Business Day and
(xii) if any payment required by any Facility Document becomes due on a day which is not a
Business Day, such payment may be made on the next succeeding Business Day. Any direction
or order required hereunder relating to the purchase, acquisition,
sale, disposition or other transfer of the Collateral may be in the form of a Trade Ticket from the
Borrower on which the Collateral Agent and Collateral Administrator may rely. Furthermore, with
respect to any instruction to the Collateral Agent hereunder relating to the transfer of amounts on
deposit in any of the Accounts, a copy of such instruction shall also be required to be given to the
Collateral Administrator.
Section 1.03. Computation of Time Periods. Unless otherwise stated in the applicable
Facility Document, in the computation of a period of time from a specified date to a later specified
date, the word “from” means “from and including”, the word “through” means “to and including”
and the words “to” and “until” both mean “to but excluding”. Periods of days referred to in any
Facility Document shall be counted in calendar days unless Business Days are expressly
prescribed.
(a)
All calculations with respect to Scheduled Distributions on the Collateral Loans
shall be made on the basis of information as to the terms of each such Collateral Loan and upon
reports of payments, if any, received on such Collateral Loans that are furnished by or on behalf
of the Obligor of such Collateral Loans and, to the extent they are not manifestly in error, such
information or reports may be conclusively relied upon in making such calculations.
(b)
For purposes of calculating the Coverage Tests and the Maximum Advance Rate
Default Test, except as otherwise specified in the Coverage Tests or the Maximum Advance Rate
Default Test, such calculations will not include (i) scheduled interest and principal payments on
Defaulted Collateral Loans and Ineligible Collateral Loans unless or until such payments are
actually made and (ii) ticking fees and other similar fees in respect of Collateral Loans, unless or
until such fees are actually paid.
(c) For each Collection Period and as of any date of determination, the Scheduled
Distribution on any Collateral Loans (other than Defaulted Collateral Loans and Ineligible
Collateral Loans, which, except as otherwise provided herein, shall be assumed to have Scheduled
Distributions of zero) shall be the total amount of payments and collections to be received during
such Collection Period in respect of such Collateral Loans.
(d)
Each Scheduled Distribution received with respect to a Collateral Loan shall be
assumed to be received on the applicable Due Date.
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Section 1.04. Collateral Value Calculation Procedures. In connection with all calculations
required to be made pursuant to this Agreement with respect to Scheduled Distributions on any
Collateral Loans, or any payments on any other assets included in the Collateral, with respect to
the sale of and reinvestment in Collateral Loans, and with respect to the income that can be earned
on Scheduled Distributions on such Collateral Loans and on any other amounts that may be
received for deposit in the Collection Account, the provisions set forth in this Section 1.04 shall
be applied. The provisions of this Section 1.04 shall be applicable to any determination or
calculation that is covered by this Section 1.04, whether or not reference is specifically made to
Section 1.04, unless some other method of calculation or determination is expressly specified in
the particular provision.
(e)
References in the Priority of Payments to calculations made on a “pro forma basis”
shall mean such calculations after giving effect to all payments, in accordance with the Priority
of Payments, that precede (in priority of payment) or include the clause in which such calculation
is made.
(f)
For purposes of calculating all Concentration Limitations, in both the numerator
and the denominator of any component of the Concentration Limitations, Ineligible Collateral
Loans will be treated as having a Principal Balance equal to zero.
(g)
Determinations of the Collateral Loans, or portions thereof, that constitute Excess
Concentration Amounts will be determined in the way that produces the highest Borrowing Base
at the time of determination, it being understood that a Collateral Loan (or portion thereof) that
falls into more than one category of Collateral Loans will be deemed, solely for purposes of such
determinations, to fall only into the category that produces the highest such Borrowing Base at
such time (without duplication).
(h)
Except as otherwise provided herein, the Defaulted Collateral Loan Balance for
Defaulted Collateral Loans will be included in the calculation of the Collateral Quality Tests and
Ineligible Collateral Loans will not be included in the calculation of the Collateral Quality Tests.
(i)
For purposes of determining the Weighted Average Spread Test and the Weighted
Average Coupon Test (and related computations of stated interest coupons and Aggregate Funded
Spread), capitalized or deferred interest (and any other interest that is not required to be paid in
cash) will be excluded.
(j)
References in this Agreement to the Borrower’s “purchase” or “acquisition” of a
Collateral Loan include references to the Borrower’s acquisition of such Collateral Loan by way
of a sale and/or contribution from the Parent and the Borrower’s making or origination of such
Collateral Loan. Portions of the same Collateral Loan acquired by the Borrower on different dates
(whether through purchase, receipt by contribution or the making or origination thereof, but
excluding subsequent draws under Revolving Collateral Loans or Delayed Drawdown Collateral
Loans) will, for purposes of determining the purchase price of such Collateral Loan, be treated as
separate purchases on separate dates (and not a weighted average purchase price for any particular
Collateral Loan).
(k)
For the purposes of calculating compliance with each of the Concentration
Limitations all calculations will be rounded to the nearest 0.01%.
(l)
Notwithstanding any other provision of this Agreement to the contrary, all
monetary calculations under this Agreement shall be in Dollars. For purposes of this Agreement,
calculations with respect to all amounts received or required to be paid in a currency other than
Dollars shall be valued at zero.
(m)
For purposes of calculating compliance with any test under this Agreement in
connection with the acquisition or disposition of a Collateral Loan or Eligible Investment, the
trade date (and not the settlement date) with respect to any such Collateral Loan or Eligible
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Investment under consideration for acquisition or disposition shall be used to determine whether
such acquisition or disposition is permitted hereunder.
(n)
With respect to each of the Collateral Agent and the Collateral Administrator, in
case any reasonable question arises as to the interpretation of a calculation hereunder or the other
Facility Documents, each of Collateral Agent and the Collateral Administrator may request
instructions from the Administrative Agent and shall (i) be entitled at all times to refrain from
taking any actions unless it has received instruction from the Administrative Agent and (ii) act in
accordance with instructions received from the Administrative Agent.
Section 1.05. Divisions. For all purposes under the Facility Documents, in connection
with any division or plan of division under Delaware Law (or any comparable event under a
different jurisdiction’s Laws): (a) if any asset, right, obligation or liability of any Person becomes
the asset, right, obligation or liability of a different Person, then it shall be deemed to have been
transferred from the original Person to the subsequent Person, and (b) if any new Person comes
into existence, such new Person shall be deemed to have been organized on the first date of its
existence by the holders of its equity interests at such time.
ARTICLE II
ADVANCES
Section 2.01.Revolving Credit Facility. On the terms and subject to the conditions
hereinafter set forth, including Article III, each Lender severally agrees to make Advances
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Section 1.06. Rates. The Administrative Agent does not warrant or accept responsibility
for, and shall not have any liability (except as provided herein) 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 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, Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark
prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of
any Conforming Changes. The Administrative Agent and its affiliates or other related entities may
engage in transactions that affect the calculation of Base Rate, the Term SOFR Reference Rate,
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 Administrative Agent may select information sources or services in its reasonable
discretion to ascertain Base Rate, the Term SOFR Reference Rate, 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 Lender 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.
(including, in the case of the Swingline Lender, any Swingline Advances) from time to time on
any Business Day during the Reinvestment Period (or immediately thereafter pursuant to Section
8.04), on a pro rata basis in each case in an aggregate principal amount at any one time
outstanding up to but not exceeding such Lender’s Commitment and, as to all Lenders, in an
aggregate principal amount up to but not exceeding the Maximum Available Amount as then in
effect. For the avoidance of doubt, each Lender’s obligation to refund Swingline Advances
pursuant to Section 2.15 shall constitute usage of its Commitment. Each such borrowing of an
Advance on any single day is referred to herein as a “Borrowing”. Within such limits and subject
to the other terms and conditions of this Agreement, the Borrower may borrow (and re-
borrow) Advances under this Section 2.01 and prepay Advances under Section 2.05. On the terms
and conditions hereinafter set forth, from time to time from the Closing Date until the end of the
Reinvestment Period, the Borrower may request the Swingline Lender to make Swingline
Advances to the Borrower, secured by the Collateral; provided that the Swingline Lender shall
not fund any Swingline Advance if, after giving effect to the amount of the Swingline Advance
requested, the aggregate principal amount of Advances outstanding would exceed the Borrowing
Base. Advances to be made for the purpose of refunding Swingline Advances shall be made by
the Lenders as provided in Section 2.15.
Section 2.02.
Making of the Advances.(a) If the Borrower desires to make a
Borrowing under this Agreement, the Borrower, or the Collateral Manager on its behalf, shall give
(b)
Each Lender shall, not later than 12:00 noon on each Borrowing Date in respect of
Advances (other than Swingline Advances), make its Percentage of the applicable Requested
Amount available to the Borrower by disbursing such funds in Dollars to the Principal Collection
Account (or in accordance with the wire instructions delivered in connection with the Notice of
Borrowing). In the case of a Swingline Advance, upon satisfaction of the applicable conditions
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each Lender, the Administrative Agent and the Collateral Agent (with a copy to the Collateral
Administrator) a written notice (each, a “Notice of Borrowing”) for such Borrowing (which notice
shall be irrevocable and effective upon receipt) not later than 2:00 p.m. at least one
(1) Business Day (or such shorter time as may be mutually agreed upon by the Borrower and the
Administrative Agent) prior to the day of the requested Borrowing; provided that any Notice of
Borrowing requesting a Swingline Advance (which notice the Administrative Agent shall forward
to the Swingline Lender and each Lender), shall be delivered not later than 12:00 noon on the day
of the requested Borrowing.
Each Notice of Borrowing shall be substantially in the form of Exhibit A, dated the date
the request for the related Borrowing is being made, signed by a Responsible Officer of the
Borrower or the Collateral Manager, as applicable, shall attach a Borrowing Base Calculation
Statement (which Borrowing Base Calculation Statement shall give pro forma effect to any
Collateral Loans being acquired with the proceeds of such Borrowing on such date or the
following Business Day) and shall otherwise be appropriately completed. The proposed
Borrowing Date specified in each Notice of Borrowing shall be a Business Day falling on or prior
to the Commitment Termination Date, and the amount of the Borrowing requested in such Notice
of Borrowing (the “Requested Amount”) shall be equal to at least $500,000 or an integral multiple
of $100,000 in excess thereof (or, if less, the remaining unfunded Commitments hereunder or, in
the case of Revolving Collateral Loans and Delayed Drawdown Collateral Loans, such lesser
amount required to be funded by the Borrower in respect thereof).
set forth in Article III, the Swingline Lender shall make available to or at the direction of the
Borrower in same day funds by wire transfer to the Principal Collection Account (or in accordance
with the wire instructions delivered in connection with the Notice of Borrowing) an amount equal
to the least of (i) the amount requested by the Borrower for such Swingline Advance, (ii) the
positive difference between (A) the Swingline Commitment then in effect and
(B) the aggregate principal balance of Swingline Advances outstanding as of such date, (iii) the
maximum amount that, after taking into account the proposed use of the proceeds of such
Swingline Advance, could be advanced to the Borrower hereunder without causing the aggregate
principal balance of Advances outstanding to exceed the Borrowing Base and (iv) the unused
Commitment at such time of Truist as Lender.
Section 2.04.
Payment of Principal and Interest. The Borrower shall pay principal and
Interest on the Advances as follows:
(a)
100% of the outstanding principal amount of each Advance, together with all
accrued and unpaid Interest thereon, shall be payable on the Final Maturity Date.
(b)
Interest shall accrue on the unpaid principal amount of each Advance from the date
of such Advance until such principal amount is paid in full. The Administrative Agent shall
determine the unpaid Interest and Commitment Fees payable thereto prior to each Payment Date
using the applicable Interest Rate for the related Interest Accrual Period to be paid by the Borrower
on each Payment Date for the related Interest Accrual Period and shall send a consolidated invoice
of all such Interest and Commitment Fees to the Borrower on the fifth calendar day of each month
(or, if such day is not a Business Day, the next succeeding Business Day).
(c)
Accrued Interest shall be payable in arrears (x) on each Payment Date, and (y) in
connection with any prepayment of the Advances pursuant to Section 2.05(a); provided that (i)
with respect to any prepayment in full of the Advances outstanding, accrued Interest on such
amount through the date of prepayment may be payable on such date or as otherwise agreed to
between the Lenders and the Borrower and (ii) with respect to any partial prepayment of the
Advances outstanding, accrued Interest on such amount through the date of prepayment shall be
payable on the Payment Date following such prepayment (or on such date of prepayment if
requested by the Administrative Agent); provided that any Swingline Advance repaid on the date
of borrowing shall accrue one day’s interest.
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Section 2.03. Evidence of Indebtedness. Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the Borrower to it and
resulting from the Advances made by such Lender to the Borrower, from time to time, including
the amounts of principal and interest thereon and paid to it, from time to time hereunder, provided
that the failure of any Lender to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Advances in accordance with the terms
of this Agreement. Each of the Collateral Agent and the Collateral Administrator shall be entitled
to conclusively rely upon the information provided to it by the Administrative Agent with respect
to the Advances outstanding with respect to each Lender.
(d)
Subject in all cases to Section 2.04(f), the obligation of the Borrower to pay the
Obligations, including the obligation of the Borrower to pay the Lenders the outstanding principal
amount of the Advances and accrued interest thereon, shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms hereof (including Section 2.14),
under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower or any other Person may have or have had against any Secured Party or any
other Person.
(e)
As a condition to the payment of principal of and Interest on any Advance without
the imposition of withholding tax, the Borrower or any Agent may require certification acceptable
to it to enable the Borrower and the Agents to determine their duties and liabilities with respect to
any taxes or other charges that they may be required to deduct or withhold from payments in
respect of such Advance under any present or future Law of the United States and any other
applicable jurisdiction, or any present or future Law of any political subdivision thereof or taxing
authority therein or to comply with any reporting or other requirements under any such Law.
(f)
Notwithstanding any other provision of this Agreement, the obligations of the
Borrower under this Agreement are limited recourse obligations of the Borrower payable solely
(g)
In connection with the use or administration of Term SOFR, the Administrative
Agent (in consultation with the Borrower) will have the right to make Conforming Changes from
time to time and, notwithstanding anything to the contrary herein or in any other Facility
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 Facility
Document. The Administrative Agent will promptly notify the Borrower and the Lenders of the
effectiveness of any Conforming Changes in connection with the use or administration of Term
SOFR.
Section 2.05. Prepayment of Advances. (a) Optional Prepayments. The Borrower may,
from time to time on any Business Day, voluntarily prepay Advances in whole or in part, without
penalty or premium; provided that the Borrower shall have delivered to the Collateral
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from the Collateral in accordance with the Priority of Payments and, following realization of the
Collateral, and application of the proceeds thereof in accordance with the Priority of Payments
and, subject to Section 2.12, all obligations of and any claims against the Borrower hereunder or
in connection herewith after such realization shall be extinguished and shall not thereafter revive.
No recourse shall be had against any officer, director, employee, shareholder, Affiliate, member,
manager, agent, partner, principal or incorporator of the Borrower or their respective successors
or assigns for any amounts payable under this Agreement. It is understood that the foregoing
provisions of this clause (f) shall not (i) prevent recourse to the Collateral for the sums due or to
become due under any security, instrument or agreement which is part of the Collateral or (ii)
constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this
Agreement until such Collateral has been realized. It is further understood that the foregoing
provisions of this clause (f) shall not limit the right of any Person to name the Borrower as a party
defendant in any proceeding or in the exercise of any other remedy under this Agreement, so long
as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked
for or (if obtained) enforced against the Borrower.
Agent, the Collateral Administrator, the Lenders and the Administrative Agent written notice of
such prepayment (such notice, a “Notice of Prepayment”) in the form of Exhibit B not later than
2:00 p.m. one (1) Business Day prior to the date of such prepayment (provided that same day
notice may be given to cure any noncompliance with the Maximum Advance Rate Test or the
Maximum Advance Rate Default Test). The Borrower may also apply Principal Proceeds on
deposit in the Principal Collection Account to prepay the Advances in accordance with Section
8.02(b). Each such Notice of Prepayment shall be irrevocable and effective upon receipt and shall
be dated the date such notice is being given, signed by a Responsible Officer of the Borrower and
otherwise appropriately completed. Each prepayment of any Advance by the Borrower pursuant
to this Section 2.05(a) (other than a prepayment made in order to cure any non-compliance with
the Maximum Advance Rate Test or the Maximum Advance Rate Default Test) shall in each case
be in a principal amount of at least $500,000 or, if less, the entire outstanding principal amount
of the Advances of the Borrower. If a Notice of Prepayment is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein.
(b)
Mandatory Prepayments. The Borrower shall prepay the Advances on each
Payment Date in the manner and to the extent provided in the Priority of Payments. The Borrower
shall provide, in each Monthly Report, notice of the aggregate amounts of Advances that are to
be prepaid on the related Payment Date in accordance with the Priority of Payments.
(c)
Additional Prepayment Provisions.Each prepayment pursuant to this Section
2.05 shall be subject to Sections 2.04(c) and 2.10 and applied to the Advances in accordance
with the Lenders’ respective Percentages.
Section 2.06.
Changes of Commitments. (a) Automatic Reduction and Termination.
Subject to the provisions of Section 8.04, the Commitments of all Lenders shall be automatically
reduced to zero at 5:00 p.m. on the Commitment Termination Date.
(b)
Optional Reductions. Prior to the Commitment Termination Date, the Borrower
shall have the right to terminate or reduce the unused amount of the Facility Amount at any time
(c)
Effect of Termination or Reduction. The Commitments of the Lenders once
terminated or reduced may not be reinstated. Each reduction of the Facility Amount pursuant to
this Section 2.06 shall be applied ratably among the Lenders in accordance with their respective
Commitments.
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or from time to time upon not less than one (1) Business Day’s prior notice to the Collateral Agent,
the Lenders, the Collateral Administrator and the Administrative Agent of each such termination
or reduction, which notice shall specify the effective date of such termination or reduction and the
amount of any such termination or reduction; provided that (i) the amount of any such reduction
of the Facility Amount shall be equal to at least $500,000 or an integral multiple of $100,000 in
excess thereof or, if less, the remaining unused portion thereof, and (ii) no such reduction will
reduce the Facility Amount below the sum of (x) aggregate principal amount of Advances
outstanding at such time and (y) the Unfunded Amount at such time. Such notice of termination
or reduction shall be irrevocable and effective only upon receipt and shall be applied pro rata to
reduce the respective Commitments of each Lender.
Section 2.07.
Maximum Lawful Rate. It is the intention of the parties hereto that the
interest on the Advances shall not exceed the maximum rate permissible under Applicable Law.
Accordingly, anything herein to the contrary notwithstanding, in the event any interest is charged
to, collected from or received from or on behalf of the Borrower by the Lenders pursuant hereto
or thereto in excess of such maximum lawful rate, then the excess of such payment over that
maximum shall be applied first to the payment of amounts then due and owing by the Borrower
to the Secured Parties under this Agreement (other than in respect of principal of and interest on
the Advances) and then to the reduction of the outstanding principal amount of the Advances of
the Borrower.
Section 2.08.
Several Obligations. The failure of any Lender to make any Advance to
be made by it on the date specified therefor shall not relieve any other Lender of its obligation to
make its Advance on such date. None of the Agents shall be responsible for the failure of any
Lender to make any Advance, and no Lender shall be responsible for the failure of any other
Lender to make an Advance required to be made by such other Lender.
Section 2.09.
Increased Costs.
(a)
Increased Costs Generally. If any Change in Law shall:
(i)
impose, modify or deem applicable any reserve (including pursuant to
regulations issued from time to time by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency, special, supplemental or other
marginal reserve requirement) with respect to eurocurrency funding (currently referred to
as “Eurocurrency liabilities” in Regulation D)), special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender;
(ii)
subject any Affected Person to any Taxes (other than (A) Indemnified
Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes
and (C) Connection Income Taxes) on its loans, loan principal, letters of credit,
commitments, or other obligations, or its deposits, reserves, other liabilities or capital
attributable thereto; or
(iii)
impose on any Affected Person any other condition, cost or expense (other
than Taxes) affecting this Agreement or Advances made by such Affected Person;
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and the result of any of the foregoing shall be to increase the cost to such Affected Person
of making, continuing, converting into or maintaining any SOFR Borrowing (or maintaining its
obligation to make any such SOFR Borrowing) or to reduce the amount of any sum received or
receivable by such Affected Person hereunder (whether of principal, interest or otherwise), then
the Borrower will pay to such Lender such additional amount or amounts as will compensate such
Affected Person for such additional costs incurred or reduction suffered as specified in a certificate
delivered to the Borrower pursuant to clause (c) of this Section 2.09; provided that the Borrower
shall only be obligated to reimburse for such additional amount or amounts under this clause (a) to
the extent such amounts being requested are consistent with amounts that such Affected Person is
generally charging similarly situated borrowers under similar credit facilities.
(b)
Capital Requirements. If any Affected Person determines that any Change in Law
regarding capital or liquidity requirements has or would have the effect of reducing the rate of
return on such Affected Person’s capital or on the capital of such Affected Person’s holding
(c)
Certificates from Lenders. A certificate of an Affected Person setting forth in
reasonable detail the basis for such demand and the amount or amounts, in Dollars, necessary to
compensate such Affected Person or its holding company as specified in clause (a) or (b) of this
Section 2.09 shall be promptly delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such amount shown as due on any such certificate on the next
Payment Date after receipt thereof.
(d)
Delay in Requests. Failure or delay on the part of any Affected Person to demand
compensation pursuant to this Section 2.09 shall not constitute a waiver of such Affected Person’s
right to demand such compensation; provided that the Borrower shall not be required to
compensate an Affected Person pursuant to this Section 2.09 for any increased costs, reductions,
penalties or interest incurred more than six months prior to the date that such Affected Person
notifies the Borrower of the Change in Law giving rise to any increased costs or reductions and of
such Affected Person’s intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month
period referred to above shall be extended to include the period of retroactive effect thereof.
(e)
Lending Office. Upon the occurrence of any event giving rise to the Borrower’s
obligation to pay additional amounts to a Lender pursuant to clauses (a) or (b) of this Section
2.09, such Lender will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate a different lending office if such designation
would reduce or obviate the obligations of the Borrower to make future payments of such
additional amounts; provided that such designation is made on such terms that such Lender and
its lending office suffer no unreimbursed cost or material legal or regulatory disadvantage (as
reasonably determined by such Lender), with the object of avoiding future consequence of the
event giving rise to the operation of any such provision.
Section 2.10. Compensation; Breakage Payments. The Borrower agrees to compensate
each Affected Person from time to time, on the Payment Date (or on the applicable date of
prepayment), following such Affected Person’s written request (which request shall set
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company, if any, as a consequence of this Agreement or the Advances made by such Affected
Person to a level below that which such Affected Person or such Affected Person’s holding
company could have achieved but for such Change in Law (taking into consideration such
Affected Person’s policies and the policies of such Affected Person’s holding company with
respect to capital adequacy and liquidity coverage), by an amount deemed to be material by such
Affected Person, then from time to time the Borrower will pay to such Affected Person in Dollars,
such additional amount or amounts as will compensate such Affected Person or such Affected
Person’s holding company for any such reduction suffered or charge imposed; provided that (x)
the amounts payable under this Section 2.09 shall be without duplication of amounts payable under
Section 16.03 and shall not include any Excluded Taxes; and (y) the Borrower shall only be
obligated to reimburse for such amounts under this clause (b) to the extent such amounts are
consistent with amounts that such Affected Person is generally charging similarly situated
borrowers under similar credit facilities.
forth the basis for requesting such amounts), in accordance with the Priority of Payments for all
reasonable losses, expenses and liabilities (including any interest paid by such Affected Person to
lenders of funds borrowed to make or carry an Advance computed by reference to the then-
current Benchmark and any loss sustained by such Affected Person in connection with the re-
employment of such funds but excluding loss of anticipated profits), which such Affected Person
may sustain: (i) if for any reason (including any failure of a condition precedent set forth in Article
III but excluding a default by the applicable Lender) any Advance computed by reference to the
then-current Benchmark by the Borrower does not occur on the Borrowing Date specified therefor
in the applicable Notice of Borrowing delivered by the Borrower, (ii) if any payment, prepayment
or conversion of any of the Borrower’s Advances occurs on a date that is not the last day of the
relevant Interest Accrual Period, (iii) if any payment or prepayment of any Advance computed by
reference to the then-current Benchmark is not made on a Payment Date or pursuant to a Notice
of Prepayment given by the Borrower or (iv) as a consequence of any other default by the
Borrower to repay its Advances when required by the terms of this Agreement. A certificate as
to any amounts payable pursuant to this Section 2.10 submitted to the Borrower by any Lender
(with a copy to the Agents, and accompanied by a reasonably detailed calculation of such amounts
and a description of the basis for requesting such amounts) shall be conclusive in the absence of
manifest error.
Section 2.11.
Illegality; Inability to Determine Rates; Benchmark Replacement
Setting.
(a)
Inability to Determine SOFR. Subject to paragraphs (b) through and (f) below, if,
prior to the commencement of any Interest Accrual Period for any SOFR Borrowing:
(i)
theAdministrativeAgentshallhavedetermined(which
determination shall be conclusive absent manifest error) that “Term SOFR” cannot be
determined pursuant to the definition thereof, or
(ii)
the Administrative Agent shall have received notice from the
Required Lenders that Term SOFR for such Interest Accrual Period will not adequately
and fairly reflect the cost to such Lenders of making, funding or maintaining their SOFR
Borrowings for such Interest Accrual Period,
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then the Administrative Agent shall give written notice thereof (or telephonic notice, promptly
confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter.
Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders
to make SOFR Borrowings, and any right of the Borrower to continue SOFR Borrowings or to
convert Advances computed by reference to the Base Rate to SOFR Borrowings, shall be
suspended (to the extent of the affected SOFR Borrowings or affected Interest Accrual Periods)
until the Administrative Agent 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
Borrowings (to the extent of the affected SOFR Borrowings or affected Interest Accrual 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 an Advance computed by reference to the Base Rate in the
amount specified therein and (ii) any outstanding affected SOFR Borrowings will be
deemed to have been converted into an Advance computed by reference to the Base Rate at the
end of the applicable Interest Accrual 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 2.09.
Subject to paragraphs (b) through (f) below, if the
Administrative Agent determines (which determination shall be conclusive and binding absent
manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any
given day, the interest rate on Advances computed by reference to the Base Rate shall be
determined by the Administrative Agent without reference to clause (c) of the definition of “Base
Rate” until the Administrative Agent revokes such determination. If the Benchmark
Replacement is Daily Simple SOFR, all Interest payments will be payable on a monthly basis.
(b)
Benchmark Replacement. Notwithstanding anything to the contrary herein or in
any other Facility 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
(c)
Benchmark Replacement Conforming Changes. In connection with the use,
administration, adoption or implementation of a Benchmark Replacement, the Administrative
Agent (in consultation with the Borrower) will have the right to make Conforming Changes from
time to time and, notwithstanding anything to the contrary herein or in any other Facility
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 Facility
Document.
(d)
Notices; Standards for Decisions and Determinations. The Administrative Agent
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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 Facility
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
Facility 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
Facility Document in respect of any Benchmark setting at or after 5:00 p.m. 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 Facility Document so long as the Administrative Agent has not received, by such time,
written notice of objection to such Benchmark Replacement from Lenders comprising the
Required Lenders.
will promptly notify the Borrower, the Collateral Agent, the Collateral Administrator and the
Lenders 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 Administrative Agent will notify the Borrower of (x) the
removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.11(e) and (y) the
commencement of any Benchmark Unavailability Period. Any determination, decision or election
that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders)
pursuant to this Section 2.11, 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 Facility Document, except, in each case, as expressly
required pursuant to this Section 2.11.
(e)
Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary
herein or in any other Facility Document, at any time (including in connection with the
(f)
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 Borrowing of, conversion to or continuation of SOFR Borrowings 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 Advances computed by reference to the Base Rate. 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. None of
the Collateral Agent, the Custodian, the Document Custodian or the Collateral Administrator will
have any responsibility for the selection or determination of an alternate benchmark rate or other
replacement index, or any liability for any failure or delay in performing their duties hereunder
solely as a result of the unavailability of a benchmark rate during a Benchmark Unavailability
Period.
(g)
Illegality. If any Change in Law shall make it unlawful or impossible for any
Lender to perform any of its obligations hereunder, to make, maintain or fund any SOFR
Borrowing or to determine or charge interest rates based upon SOFR, the Term SOFR Reference
Rate or Term SOFR and such Lender shall so notify the Administrative Agent, the Administrative
Agent shall promptly give notice thereof to the Borrower and the other Lenders, whereupon until
such Lender notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make SOFR Borrowings,
or to continue or convert outstanding Advances as or into SOFR Borrowings, shall be suspended.
In the case of the making of a SOFR Borrowing, such Lender’s
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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 Administrative 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 Administrative Agent may modify the definition of “Interest Accrual 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 Administrative Agent may modify the definition of “Interest Accrual Period” (or any
similar or analogous definition) for all Benchmark settings at or after such time to reinstate such
previously removed tenor.
Advance shall be made as an Advance computed by reference to the Base Rate as part of the same
Borrowing for the same Interest Accrual Period and, if the affected SOFR Borrowing is then
outstanding, such Advance shall be converted to an Advance computed by reference to the Base
Rate either (i) on the last day of the then current Interest Accrual Period applicable to such SOFR
Borrowing if such Lender may lawfully continue to maintain such Advance to such date or (ii)
immediately if such Lender shall determine that it may not lawfully continue to maintain such
SOFR Borrowing to such date. Notwithstanding the foregoing, the affected Lender shall, prior to
giving such notice to the Administrative Agent, use reasonable efforts to designate a different
lending office if such designation would avoid the need for giving such notice and if such
designation would not otherwise be disadvantageous to such Lender in the good faith exercise of
its discretion. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted, together with any additional amounts required
pursuant to Section 2.09.
Section 2.12.
Rescission or Return of Payment. The Borrower agrees that, if at any time
(including after the occurrence of the Final Maturity Date) all or any part of any payment
theretofore made by it to any Secured Party or any designee of a Secured Party is or must be
rescinded or returned for any reason whatsoever (including the insolvency, bankruptcy or
reorganization of the Borrower or any of its Affiliates), the obligation of the Borrower to make
such payment to such Secured Party shall, for the purposes of this Agreement, to the extent that
such payment is or must be rescinded or returned, be deemed to have continued in existence and
this Agreement and any other applicable Facility Document shall continue to be effective or be
reinstated, as the case may be, as to such obligations, all as though such payment had not been
made.
Section 2.13. Past Due Interest. The Borrower shall pay interest on all Obligations (other
than principal and interest on the Advances, where the default rate is reflected in the Applicable
Margin) that are not paid when due for the period from the due date thereof until the date the same
is paid in full at the Past Due Rate. Interest payable at the Past Due Rate shall be payable on each
Payment Date in accordance with the Priority of Payments.
Section 2.14.
Payments Generally. (a) All amounts owing and payable to any Secured
Party, any Affected Person or any Indemnified Party, in respect of the Advances and other
Obligations, including the principal thereof, interest, fees, indemnities, expenses or other amounts
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payable under this Agreement or any other Facility Document, shall be paid by the Borrower to
the applicable recipient in Dollars, in immediately available funds, in accordance with the Priority
of Payments, and all without counterclaim, setoff, deduction, defense, abatement, suspension or
deferment. Each Lender shall provide wire instructions (and any other information reasonably
requested in order to effect any payment hereunder) to the Borrower, the Administrative Agent
and the Collateral Agent. All payments made by the Collateral Agent pursuant to a Monthly
Report on any Payment Date shall be wired by the Collateral Agent by 2:00 p.m. on such Payment
Date. Prepayments to be made pursuant to Section 2.05 for which the Collateral Agent and the
Collateral Administrator has received a Notice of Prepayment one (1) Business Day prior to the
scheduled date of prepayment shall be wired by the Collateral Agent by 12:00 noon on such date.
All other payments by the Borrower must be received by the Collateral Agent on or prior to 1:00
p.m. on a Business Day (the Collateral Agent shall then wire such funds to the Lenders by 3:00
p.m. on such Business Day); provided that, payments received
by the Collateral Agent after 1:00 p.m. or payments received by the Lenders after 3:00 p.m. on a
Business Day will be deemed to have been paid on the next following Business Day. For the
avoidance of doubt, for purposes of Section 6.01, amounts paid by the Borrower shall be deemed
received upon payment by the Borrower to the Collateral Agent. At no time will the Collateral
Agent have any duty (express or implied) to fund (or front or advance) any amount owing by the
Borrower hereunder.
(b)
Except as otherwise expressly provided herein, all computations of interest, fees and
other Obligations shall be made on the basis of a year of 360 days for the actual number of days
elapsed in computing interest on any Advance, the date of the making of the Advance shall be
included and the date of payment shall be excluded; provided that, if an Advance (including any
Swingline Advance) is repaid on the same day on which it is made, one day’s Interest shall be
paid on such Advance. All computations made by a Lender, the Collateral Agent, the Collateral
Administrator or the Administrative Agent under this Agreement or any other Facility Document
shall be conclusive absent manifest error.
Section 2.15.
Refunding of Swingline Advances.
(a)
Each Swingline Advance shall be refunded by the Lenders (other than the
Swingline Lender) on the second Business Day following the date of such Swingline Advance
(each such date, a “Swingline Refund Date”). Such refunding shall be made by the Lenders ratably
in accordance with their respective Percentages and shall thereafter be reflected as Advances of
the Lenders on the books and records of the Administrative Agent. Each Lender shall fund its
respective pro rata share of Advances as required to repay Swingline Advances outstanding to the
Swingline Lender no later than 12:00 noon on the applicable Swingline Refund Date.
(b)
The Borrower shall pay to the Swingline Lender, within five (5) days of demand,
the amount of such Swingline Advances to the extent amounts received from the Lenders are not
sufficient to repay in full the outstanding Swingline Advances requested or required to be
refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by
or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of
the amount so recovered shall be ratably shared among all the Lenders (other than the Swingline
Lender) in accordance with their respective Percentages.
(c)
Each Lender acknowledges and agrees that its obligation to refund Swingline
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Advances in accordance with the terms of this Section is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including non-satisfaction of the conditions set forth
in Article III. Further, each Lender agrees and acknowledges that, if prior to the refunding of any
outstanding Swingline Advances pursuant to this Section, an Insolvency Event relating to the
Borrower shall have occurred, each Lender will, on the date the applicable Advance would have
been made, purchase an undivided participating interest in the Swingline Advance to be refunded
in an amount equal to its Percentage of the aggregate outstanding amount of such Swingline
Advance. Each Lender will immediately transfer to the Swingline Lender, in immediately
available funds, the amount of its participation and upon receipt thereof the Swingline Lender will
deliver to such Lender a certificate evidencing such participation dated the date of receipt of such
funds and for such amount. Whenever, at any time after the Swingline
Lender has received from any Lender such Lender’s participating interest in a Swingline
Advance, the Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded).
(d)
Notwithstanding anything contained in this Agreement to the contrary, the
Swingline Lender shall not be obligated to make any Swingline Advance at a time when any other
Lender is a Defaulting Lender, unless the Swingline Lender has entered into arrangements (which
may include the delivery of cash collateral) with the Borrower or such Defaulting Lender which
are satisfactory to the Swingline Lender to eliminate the Swingline Lender’s Fronting Exposure
(without giving effect to Section 2.16(a)(iii)) with respect to any such Defaulting Lender.
Section 2.16.
Defaulting Lenders.
(a)
Notwithstanding anything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a
Defaulting Lender, to the extent permitted by Applicable Law:
(i)
Such Defaulting Lender’s right to approve or disapprove any amendment,
waiver or consent with respect to this Agreement shall be restricted as set forth in Section
16.01(d).
(ii)
Defaulting Lender Waterfall. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise)
shall be applied at such time or times as may be determined by the Administrative Agent
as follows: first, to the payment of any amounts owing by such Defaulting Lender to the
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Administrative Agent hereunder; second, to the payment of any amounts owing by that
Defaulting Lender to the Swingline Lender hereunder; third, if so determined by the
Administrative Agent or requested by the Swingline Lender, to be held as cash collateral
for future funding obligations of that Defaulting Lender for any participation in any
Swingline Advance; fourth, as the Borrower may request (so long as no Default or Event
of Default exists), to the funding of any Advance in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined
by the Administrative Agent; fifth, if so determined by the Administrative Agent and the
Borrower, to be held as cash collateral for future funding obligations of such Defaulting
Lender to fund Advances under this Agreement; sixth, to the payment of any amounts
owing to the Lenders as a result of any judgment of a court of competent jurisdiction
obtained by any Lender against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Borrower as a result
of any judgment of a court of competent jurisdiction obtained by the Borrower against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court
of competent jurisdiction; provided that if (x) such payment is a payment of the
principal amount of any Advances or funded participation in Swingline Advances in
respect of which such Defaulting Lender has not fully funded its appropriate share, and
(y) such Advances were made at a time when the conditions set forth in Section 3.02 were
satisfied or waived, such payment shall be applied solely to pay the Advances of, and
funded participation in Swingline Advances owed to, all non-Defaulting Lenders on a pro
rata basis prior to being applied to the payment of any Advances of, and funded
participation in Swingline Advances owed to, such Defaulting Lender until such time as
all Advances are held by the Lenders pro rata in accordance with their Percentages of the
Commitments. Any payments, prepayments or other amounts paid or payable to a
Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
or to post cash collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and
redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)
During any period in which there is a Defaulting Lender, for purposes of
computing the amount of the obligation of each non-Defaulting Lender to (a) acquire,
(iv)
For any period during which such Lender is a Defaulting Lender, such
Lender shall not be entitled to receive any Commitment Fee for any period during which
that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such
fee that otherwise would have been required to have been paid to that Defaulting Lender).
(b)
If the Administrative Agent and the Swingline Lender agree in writing in their sole
discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified
in such notice and subject to any conditions set forth therein (which may include arrangements
with respect to any cash collateral), that Lender will, to the extent applicable, purchase that portion
Section 2.17.
Replacement of Lenders.
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refinance or fund participations in Swingline Advances pursuant to Section 2.15 or (b)
make Advances to the Borrower to repay a Swingline Advance pursuant to Section 2.02,
the “Percentage” of each non-Defaulting Lender shall be computed without giving effect
to the Commitment of that Defaulting Lender; provided that each such reallocation shall
be given effect only if the aggregate obligation of each non-Defaulting Lender to acquire,
refinance or fund participations in Swingline Advances shall not exceed the positive
difference, if any, of (A) the Commitment of that non-Defaulting Lender minus (B) the
aggregate outstanding principal amount of the Advances of that Lender.
of outstanding Advances of the other Lenders or take such other actions as the Administrative
Agent may determine to be necessary to cause the Advances to be held on a pro rata basis by the
Lenders in accordance with their respective Percentages of the Commitments, whereupon such
Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise
expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender
will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.
(a)
Notwithstanding anything to the contrary contained herein, in the event that
(i)
such Potential Terminated Lender shall have received payment of an
amount equal to the outstanding principal of its Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Facility
Documents (including any amounts under Section 2.10) from the Replacement Lender (to
the extent of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);
(ii)
in the case of any such assignment resulting from a claim for compensation
under Section 2.09 or payments required to be made pursuant to Section 16.03, such
assignment will result in a reduction in such compensation or payments thereafter;
(iii)
such assignment does not conflict with Applicable Law; and
(iv)
in the case of an assignment based on clause (z) above, the Replacement
Lender shall have consented to the applicable amendment, waiver or consent.
(c)
No Lender shall be required to make any assignment or delegation pursuant
to Section 2.17(a) if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to
apply.
Section 2.18.
Increase in Facility Amount.
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(x) any Affected Person shall request reimbursement for amounts owing pursuant to Section 2.09
or 16.03, (y) a Lender is a Defaulting Lender or (z) any Lender does not give or approve any
consent, waiver or amendment that requires the approval of all Lenders or all affected Lenders in
accordance with the terms hereof and has been approved by the Required Lenders (any such
Lender in clauses (x), (y) and (z), a “Potential Terminated Lender”), the Borrower, at its sole
expense and effort, shall be permitted, upon no less than ten (10) days’ written notice to the
Administrative Agent and such Potential Terminated Lender, to require such Potential Terminated
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 16.06), all of its interests, rights (other than its
existing rights to payments pursuant to Sections 2.09 and 16.03) and obligations under this
Agreement and the related Facility Documents to an assignee permitted pursuant to Section 16.06
(a “Replacement Lender”) that shall assume such obligations (which assignee may be another
Lender, if such Lender accepts such assignment); provided that:
(b) Each Potential Terminated Lender hereby agrees to take all actions
reasonably necessary, at the sole expense of the Borrower, to permit a Replacement
Lender to succeed to its rights and obligations hereunder. Upon the effectiveness of any
such assignment to a Replacement Lender, (i) such Replacement Lender shall become a
“Lender” hereunder for all purposes of this Agreement and the other Facility Documents,
(ii) such Replacement Lender shall have a Commitment in the amount not less than the
Potential Terminated Lender’s Commitment assumed by it and (iii) the Commitment of
the Potential Terminated Lender shall be terminated in all respects.
(a)
The Borrower may, at any time and from time to time prior to the Commitment
(b)
In connection with any Facility Amount Increase other than in connection with a
Facility Amount Increase Agreement, at the request of the Borrower, a Permitted Assignee may
join this Agreement as a Lender and assume all rights and obligations of a Lender under this
Agreement and the other Facility Documents, subject to the following conditions: (i) the
Commitment of the new Lender shall be in addition to the Commitment of the existing Lenders
in effect on the date of such new Lender’s entry into this Agreement and the Facility Amount
shall be increased in a corresponding amount; (ii) such new Lender shall deliver to the Borrower
the applicable tax forms required by Section 16.03(g); and (iii) the new Lender and the Borrower
shall execute and deliver to the Administrative Agent a Lender Joinder Agreement substantially
in the form of Exhibit F-3 (each, a “Lender Joinder Agreement”).
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Termination Date, increase the Facility Amount, either through an increase in the Commitment
of a particular Lender or addition of a new Lender, by delivering a request substantially in the
form attached hereto as Exhibit F-1 (each, a “Facility Amount Increase Request”) or in such other
form acceptable to the Administrative Agent at least 30 days (or such lesser number of days as is
acceptable to the Administrative Agent) before the desired effective date of such increase (the
“Facility Amount Increase”) identifying an additional Lender that is a Permitted Assignee (or
additional Commitments for existing Lender(s) which have consented to such increase), and the
amount of its Commitment (or additional amount of its Commitment(s)); provided, however, that
(i) any increase of the aggregate amount of the Facility Amount shall be in an amount not less
than $10,000,000, (ii) no Default or Event of Default shall have occurred and be continuing at the
time of the request or the effective date of the Facility Amount Increase,
(iii) all representations and warranties contained in Article IV hereof (as the same may be amended
from time to time) shall be true and correct in all material respects at the time of such request and
on the effective date of such Facility Amount Increase, (iv) the Administrative Agent shall have
provided its written consent to such increase, (v) each existing Lender that has agreed to increase
its Commitment shall deliver to the Borrower a Facility Amount Increase Agreement substantially
in the form attached hereto as Exhibit F-2 (each, a “Facility Amount Increase Agreement”), (vi)
each new Lender shall satisfy the conditions set forth in Section 2.18(b), and
(vii) any increase of the Facility Amount to an amount in excess of $800,000,000 will require the
approval of the Required Lenders. The effective date of the Facility Amount Increase shall be
agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness thereof, the
new Lender(s) (or, if applicable, existing Lender(s)) shall make Advances in an amount sufficient
such that after giving effect to its advance each Lender shall have outstanding its Percentage of
Advances. It shall also be a condition to such effectiveness that the Borrower shall not have
terminated any portion of the Facility Amount pursuant to Section 2.06 hereof. The Borrower
agrees to pay any reasonable and documented expenses of the Administrative Agent relating to
any Facility Amount Increase. Notwithstanding anything herein to the contrary, no Lender shall
have any obligation to increase its Commitment and no Lender’s Commitment shall be increased
without its consent thereto, and each Lender may in its sole and absolute discretion,
unconditionally and without cause, decline to increase its Commitment.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01.
Conditions Precedent to Initial Advances. The obligation of each Lender
to make its initial Advance hereunder shall be subject to the conditions precedent that the
Administrative Agent shall have received on or before the Closing Date the following, each in
form and substance reasonably satisfactory to the Administrative Agent:
(a)
each of the Facility Documents (other than the Collateral Agent and Collateral
Administrator Fee Letter, which shall be delivered directly to Citibank and Virtus Group, LP)
duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b)
true and complete copies of the Constituent Documents of the Borrower, the
Collateral Manager and the Parent as in effect on the Closing Date;
(c)
true and complete copies certified by a Responsible Officer of the Borrower of all
Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required
in connection with the transactions contemplated by this Agreement;
(d)
a certificate of a Responsible Officer of the Borrower and the Collateral Manager
certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board
(e)
[reserved];
(f)
[reserved];
(g)
financing statements (or the equivalent thereof in any applicable foreign
jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the
Delaware Secretary of State, the Maryland Department of Assessments and Taxation and any
other applicable filing office in any applicable jurisdiction that the Administrative Agent deems
necessary or desirable in order to perfect the interests in the Collateral contemplated by this
Agreement and the Purchase and Contribution Agreement;
(h)
copies of proper financing statement amendments (or the equivalent thereof in any
applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and
other rights of any Person in the Collateral previously granted by the Borrower, the Parent or any
transferor;
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of directors or members or other governing body approving this Agreement and the other Facility
Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that
its representations and warranties set forth in the Facility Documents to which it is a party are true
and correct in all material respects as of the Closing Date (except to the extent such representations
and warranties expressly relate to any earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default
or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen
signature of each of its Responsible Officers authorized to execute the Facility Documents to
which it is a party;
(i)
legal opinions (addressed to each of the Secured Parties) of Dechert LLP, counsel
to the Borrower, the Parent and the Collateral Manager, Dentons US LLP, counsel to the
Collateral Agent, the Document Custodian, the Custodian and the Collateral Administrator and
Porter Hedges LLP, counsel to the Collateral Administrator, covering such matters as the
Administrative Agent and its counsel shall reasonably request;
(j)
evidence reasonably satisfactory to it that all of the Covered Accounts shall have
been established and the Account Control Agreement shall have been executed and delivered by
the Borrower, the Collateral Agent and the Custodian, and shall be in full force and effect;
(k)
evidence that (x) all fees and expenses due and owing to the Administrative Agent,
each Lender, Citibank, in its respective capacities hereunder, and Virtus Group, LP on or prior to
the Closing Date have been received or will be received contemporaneous with closing;
(l)
delivery of such Collateral (including any promissory note, executed assignment
agreements and word or pdf copies of the principal credit agreement for each initial Collateral
Loan, to the extent received by the Borrower) in accordance with the provisions of Article XIII
shall have been effected;
(m)
a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date,
certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent,
on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the
delivery thereof on the Closing Date:
(i)
the Borrower is the owner of such Collateral free and clear of any Liens
except for (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii)
the Borrower has acquired its ownership in such Collateral in good faith
without notice of any adverse claim, except as described in clause (i) above;
(iii)
the Borrower has not assigned, pledged or otherwise encumbered any
interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise
encumbered, it has been released) other than Permitted Liens or interests granted pursuant
to this Agreement;
(iv)
the Borrower has full right to grant a security interest in and assign and
pledge such Collateral to the Collateral Agent; and
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(y) the reasonable and documented fees and expenses of Mayer Brown LLP, counsel to the
Administrative Agent, Dentons US LLP, counsel to the Collateral Administrator and Citibank, in
its respective capacities hereunder, and Porter Hedges LLP, counsel to the Collateral
Administrator, in connection with the transactions contemplated hereby (to the extent invoiced
prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees
(including legal fees of outside counsel and any fees required under the Collateral Agent and
Collateral Administrator Fee Letter that are invoiced at least one Business Day prior to the Closing
Date), shall have been paid by the Borrower;
(v) upon grant by the Borrower and the filing of the financing statements
contemplated in clause (g) above, the Collateral Agent has a first priority perfected
security interest in the Collateral, except Permitted Liens or as permitted by this
Agreement;
(n)
all documentation and other information requested by any such Lender required
by bank regulatory authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have
received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower,
the Collateral Manager and the Parent; and
(o)
such other opinions, instruments, certificates and documents from the Borrower,
the Collateral Manager and the Parent as the Agents or any Lender shall have reasonably
requested.
Section 3.02. Conditions Precedent to Each Borrowing. The obligation of each Lender
to make each Advance to be made by it (including the initial Advance and any Swingline Advance)
on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided
that the conditions described in clauses (c) and (d) (other than a Default or Event of Default
described in Section 6.01(f)) below need not be satisfied if the proceeds of the Borrowing are used
to fund Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the
Borrower or to fund the Revolving Reserve Account to the extent required under Section 8.04:
(a)
the Administrative Agent (and, with respect to any Swingline Advance, the
Swingline Lender) shall have received a Notice of Borrowing with respect to such Advance
(including the Borrowing Base Calculation Statement attached thereto, all duly completed)
delivered in accordance with Section 2.02;
(b)
immediately after the making of such Advance on the applicable Borrowing Date,
each Coverage Test shall be satisfied (or in the case of the Interest Coverage Ratio Test, was
satisfied as of the most recent Monthly Reporting Date) (as demonstrated on the Borrowing Base
Calculation Statement attached to such Notice of Borrowing);
(c)
each of the representations and warranties of the Borrower, the Parent and the
Collateral Manager contained in the Facility Documents shall be true and correct in all material
respects as of such Borrowing Date (except to the extent such representations and warranties
expressly relate to any earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date as if made on such date);
(d)
no Default, Event of Default, Potential Collateral Manager Termination Event or
Collateral Manager Termination Event shall have occurred and be continuing at the time of the
making of such Advance or shall result upon the making of such Advance; and
(e)
the Reinvestment Period shall not have terminated.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01.
Representations and Warranties of the Borrower.
The Borrower
represents and warrants to each of the Secured Parties on and as of each Measurement Date (and,
in respect of clause (i) below, each date such information is provided by or on behalf of it), as
follows:
(a)
Due Organization. The Borrower is a limited liability company duly organized
and validly existing under the Laws of the State of Delaware, with full power and authority to
own and operate its assets and properties, conduct the business in which it is now engaged and to
execute and deliver and perform its obligations under this Agreement and the other Facility
Documents to which it is a party.
(b)
Due Qualification and Good Standing. The Borrower is in good standing in the
State of Delaware. The Borrower is duly qualified to do business and, to the extent applicable, is
in good standing in each other jurisdiction in which the nature of its business, assets and properties,
including the performance of its obligations under this Agreement, the other Facility Documents
to which it is a party and its Constituent Documents, requires such qualification, except where the
failure to be so qualified or in good standing could not reasonably be expected to have a Material
Adverse Effect.
(c)
Due Authorization; Execution and Delivery; Legal, Valid and Binding;
Enforceability. The execution and delivery by the Borrower of, and the performance of its
obligations under the Facility Documents to which it is a party and the other instruments,
certificates and agreements contemplated thereby are within its powers and have been duly
authorized by all requisite action by it and have been duly executed and delivered by it and
constitute its legal, valid and binding obligations enforceable against it in accordance with their
respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting creditors’ rights generally or general
principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d)
Non-Contravention. None of the execution and delivery by the Borrower of this
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Agreement or the other Facility Documents to which it is a party, the Borrowings or the pledge of
the Collateral hereunder, the consummation of the transactions herein or therein contemplated, or
compliance by it with the terms, conditions and provisions hereof or thereof, will (i) conflict with,
or result in a breach or violation of, or constitute a default under its Constituent Documents, (ii)
conflict with or contravene (A) any Applicable Law, (B) any indenture, agreement or other
contractual restriction binding on or affecting it or any of its assets, including any Related
Document, or (C) any order, writ, judgment, award, injunction or decree binding on or affecting
it or any of its assets or properties or (iii) 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 of the
giving of notice or the passage of time (or both) would constitute such a conflict with, breach or
violation of, or default under, or permit any such acceleration in, any contractual obligation or any
agreement or document to which it is a party or by which it or any of its assets are bound (or to
which any such obligation, agreement or document relates), except
in the case of clauses (ii) and (iii) above, where such conflicts, breaches, violations or defaults
could not reasonably be expected to have a Material Adverse Effect.
(e)
Governmental Authorizations; Private Authorizations; Governmental Filings.
The Borrower has obtained, maintained and kept in full force and effect all Governmental
Authorizations and Private Authorizations which are necessary for it to properly carry out its
business, except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect, and made all material Governmental Filings necessary for the execution and
delivery by it of the Facility Documents to which it is a party, the Borrowings by the Borrower
under this Agreement, the pledge of the Collateral by the Borrower under this Agreement and the
performance by the Borrower of its obligations under this Agreement, the other Facility
Documents,andnomaterialGovernmental
Authorization,
PrivateAuthorization
or
Governmental Filing which has not been obtained or made, is required to be obtained or made by
it in connection with the execution and delivery by it of any Facility Document to which it is a
party, the Borrowings by the Borrower under this Agreement, the pledge of the Collateral by the
Borrower under this Agreement or the performance of its obligations under this Agreement and
the other Facility Documents to which it is a party.
(f)
Compliance with Agreements, Laws, Etc. The Borrower has duly observed and
complied in all material respects with all Applicable Laws relating to the conduct of its business
and its assets. The Borrower has preserved and kept in full force and effect its legal existence.
The Borrower has preserved and kept in full force and effect its rights, privileges, qualifications
and franchises, except where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
(g)
Location. The Borrower’s office in which the Borrower maintains its limited
liability company books and records is located at the addresses set forth on Schedule 5. The
Borrower’s registered office and jurisdiction of organization is the jurisdiction referred to in
Section 4.01(a).
(h)
Investment Company Act. Assuming compliance by each of the Lenders and any
participant with Section 16.06, neither the Borrower nor the pool of Collateral is required to
register as an “investment company” under the Investment Company Act.
(i)
Information and Reports. Other than any of the following information containing
information provided or prepared by an Obligor, each Notice of Borrowing, each Monthly Report,
and all other written information, reports, certificates and statements (other than projections and
forward-looking statements) furnished by or on behalf of the Borrower to any Secured Party for
purposes of or in connection with this Agreement, the other Facility Documents or the transactions
contemplated hereby or thereby are true, complete and correct in all material respects as of the
date such information is stated or certified. All projections and forward-looking statements
furnished by or on behalf of the Borrower were prepared reasonably and in good faith as of the
date on which they were provided.
(j)
ERISA. The Borrower does not, and during the past five years has not had, any
liability or obligation with respect to any Plan or Multiemployer Plan, and neither the Borrower
nor any member of its ERISA Group does, or during the past five years has had, any liability or
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obligation with respect to any Plan or Multiemployer Plan that could reasonably be expected to
result in a Material Adverse Effect.
(k)
Taxes. The Borrower has filed all U.S. federal income tax returns, information
statements, reports and all other material tax returns which are required to be filed by it, if any,
and has paid all U.S. federal income Taxes and all other material Taxes (including mortgage
recording Taxes) shown to be due and payable on such returns, if any, or pursuant to any
assessment received by any such Person, other than any such Taxes that are being contested in
good faith by appropriate proceedings and for which appropriate reserves in accordance with
GAAP have been established.
(l)
Tax Status. For U.S. Federal income tax purposes, the Borrower is treated as an
entity that is disregarded as separate from its owner (as defined in Treasury Regulation Section
301.7701-2(a)). The entity from which the Borrower is disregarded as a separate entity is a U.S.
Person.
(m) Collections. The Borrower (or the Collateral Manager on behalf of the Borrower)
has directed any agent or administrative agent for any Collateral Loan (or, in the case of a
participation interest, the participation seller) to remit all payments and collections with respect
to such Collateral Loan and, if applicable, has directed the Obligor (or, in the case of a
participation interest, the participation seller) with respect to such Collateral Loan to remit all
such payments and collections with respect to such Collateral Loan directly to the Collection
Account.
(n)
Plan Assets. The assets of the Borrower are not treated as “plan assets” for
purposes of 29 C.F.R. Section 2510.3-101 and Section 3(42) of ERISA (together, the “Plan Asset
Rule”) and the Collateral is not deemed to be “plan assets” for purposes of the Plan Asset Rule.
(o)
Solvency. After giving effect to each Advance hereunder, and the disbursement of
the proceeds of such Advance, the Borrower is and will be Solvent.
(p)Representations Relating to the Collateral. The Borrower hereby represents and
warrants that:
(i)
it owns and has legal and beneficial title to all Collateral Loans and other
Collateral free and clear of any Lien, claim or encumbrance of any Person, other than
Permitted Liens;
(ii)
other than Permitted Liens, the Borrower has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Collateral. The Borrower
has not authorized the filing of and is not aware of any financing statements or any
equivalent filing in any applicable jurisdiction against the Borrower that include a
description of collateral covering the Collateral other than any financing statement or any
equivalent filing in any applicable jurisdiction relating to the security interest granted to
the Collateral Agent hereunder or that has been terminated, and the Borrower is not
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aware of any judgment, PBGC liens or tax lien filings against the Borrower or any of its
assets;
(iii) the Collateral constitutes Money, Cash, accounts (as defined in Section 9-
102(a)(2) of the UCC), Instruments, general intangibles (as defined in Section 9-
102(a)(42) of the UCC), Uncertificated Securities, Certificated Securities or Security
Entitlements to Financial Assets resulting from the crediting of Financial Assets to a
“securities account” (as defined in Section 8-501(a) of the UCC);
(iv)
all Covered Accounts constitute “securities accounts” under Section 8-
501(a) of the UCC;
(vi)
the Borrower has received all consents and approvals required by the terms
of the Related Documents in respect of such Collateral to the pledge hereunder to the
Collateral Agent of its interest and rights in such Collateral;
(vii)
with respect to the Collateral that constitutes Security Entitlements, all such
Collateral has been and will have been credited to the applicable Covered Account; and
(viii)
with respect to the Collateral that constitutes accounts or general
intangibles (as defined in Section 9-102(a)(42) of the UCC), the Borrower has caused or
will have caused, on or prior to the Closing Date, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under Applicable Law
in order to perfect the security interest in the Collateral granted to the Collateral Agent,
for the benefit and security of the Secured Parties, hereunder (which the Borrower hereby
agrees may be an “all assets” filing), which security interest may be perfected by the filing
of a financing statement under Applicable Law.
(q)
Eligibility. Each Collateral Loan included in a Monthly Report or a Borrowing
Base Calculation Statement required to be delivered by the Borrower under this Agreement as an
Eligible Collateral Loan was, in fact, an Eligible Collateral Loan at such time.
(r)
Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions. The
Borrower and its directors, officers, managers and, to its knowledge, its agents, are in compliance
with Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions. None of (a)
the Borrower or its directors, officers or managers, or (b) to its knowledge, any of its
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(v) this Agreement creates a valid, continuing and, upon Delivery of
Collateral, filing of the financing statements referred to in clause (viii) below and
execution of the Account Control Agreement, perfected security interest (as defined in
Section 1-201(b)(35) of the UCC) in the Collateral in favor of the Collateral Agent, for
the benefit and security of the Secured Parties, which security interest is prior to all other
Liens (other than Permitted Liens), and is enforceable as such against creditors of and
purchasers from the Borrower, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting
creditors’ rights generally or general principles of equity, regardless of whether considered
in a proceeding in equity or at law;
agents that will act in any capacity in connection with or benefit from the credit facilities
established hereby, is a Sanctioned Person. No Borrowing, use of proceeds thereof or other
transactions hereunder will violate Anti-Corruption Laws, Anti-Money Laundering Laws or
applicable Sanctions
(s)
Value Given. The Borrower has given fair consideration and reasonably equivalent
value to the Parent in exchange for the purchase of the Collateral Loans (or any number of them)
from the Parent pursuant to the Purchase and Contribution Agreement. No such transfer has been
made for or on account of an antecedent debt owed by the Borrower to the Parent and no such
transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.
(t)
Beneficial Ownership Certificate. (a) As of the Closing Date, the Borrower has
delivered to the Administrative Agent and each Lender a Beneficial Ownership Certificate and
the information included in such Beneficial Ownership Certificate is true and correct in all
respects and (b) as of the date delivered, the information included in each Beneficial Ownership
Certificate delivered pursuant to Section 5.02(u) is true and correct in all respects.
(u)
Affected Financial Institutions. Neither the Borrower nor any subsidiary is an
Affected Financial Institution.
Section 4.02. Representations and Warranties of the Collateral Manager. The Collateral
Manager represents and warrants to each of the Secured Parties on and as of each Measurement
Date (and in respect of clause (i) below, each date such information is provided by or on behalf of
it), as follows:
(a)
Due Organization. The Collateral Manager is a corporation duly organized and
validly existing under the Laws of the State of Maryland, with full power and authority to own
and operate its assets and properties, conduct the business in which it is now engaged and to
execute and deliver and perform its obligations under this Agreement and the other Facility
Documents to which it is a party.
(b)
Due Qualification and Good Standing. The Collateral Manager is in good standing
in the State of Maryland. The Collateral Manager is duly qualified to do business and, to the
extent applicable, is in good standing in each other jurisdiction in which the nature of its business,
assets and properties, including the performance of its obligations under this Agreement, the other
Facility Documents to which it is a party and its Constituent Documents to which it is a party,
requires such qualification, except where the failure to be so qualified or in good standing could
not reasonably be expected to have a Material Adverse Effect.
(c)
Due Authorization; Execution and Delivery; Legal, Valid and Binding;
Enforceability. The execution and delivery by the Collateral Manager of, and the performance of
its obligations under the Facility Documents to which it is a party and the other instruments,
certificates and agreements contemplated thereby are within its powers and have been duly
authorized by all requisite action by it and have been duly executed and delivered by it and
constitute its legal, valid and binding obligations enforceable against it in accordance with their
respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
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reorganization, moratorium or other similar Laws affecting creditors’ rights generally or general
principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d)Non-Contravention.
None of the execution and delivery by the Collateral
(e)
Governmental Authorizations; Private Authorizations; Governmental Filings.
(f)
Compliance with Agreements, Laws, Etc. The Collateral Manager has duly
observed and complied in all material respects with all Applicable Laws, including the Securities
Act and the Investment Company Act, relating to the conduct of its business and its assets. The
Collateral Manager has preserved and kept in full force and effect its legal existence. The
Collateral Manager has preserved and kept in full force and effect its rights, privileges,
qualifications and franchises, except where the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.
(g)
Location of Records. The Collateral Manager’s office in which it maintains its
corporate books and records is located at the addresses set forth on Schedule 5. The Collateral
Manager’s registered office and jurisdiction of organization is the jurisdiction referred to in
Section 4.02(a).
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Manager of this Agreement or the other Facility Documents to which it is a party, the
consummation of the transactions herein or therein contemplated, or compliance by it with the
terms, conditions and provisions hereof or thereof, will (i) conflict with, or result in a breach or
violation of, or constitute a default under its Constituent Documents, (ii) conflict with or
contravene (A) any Applicable Law, (B) any indenture, agreement or other contractual restriction
binding on or affecting it or any of its assets, including any Related Document, or (C) any order,
writ, judgment, award, injunction or decree binding on or affecting it or any of its assets or
properties, or (iii) 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 of the giving of notice or
the passage of time (or both) would constitute such a conflict with, breach or violation of, or
default under, or permit any such acceleration of, any contractual obligation or any agreement or
document to which it is a party or by which it or any of its assets are bound (or to which any such
obligation, agreement or document relates), except in the case of clauses (ii) and (iii) above,
where such conflicts, breaches, violations or defaults could not reasonably be expected to have a
Material Adverse Effect.
The Collateral Manager has obtained, maintained and kept in full force and effect all
Governmental Authorizations and Private Authorizations which are necessary for it to properly
carry out its business, except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect, and made all material Governmental Filings necessary for the
execution and delivery by it of the Facility Documents to which it is a party, and the performance
by the Collateral Manager of its obligations under this Agreement, the other Facility Documents,
and no material Governmental Authorization, Private Authorization or Governmental Filing
which has not been obtained or made, is required to be obtained or made by it in connection with
the execution and delivery by it of any Facility Document to which it is a party or the
performance of its obligations under this Agreement and the other Facility Documents to which
it is a party.
(h)
Investment Company Act. The Collateral Manager is registered as an “investment
company” under the Investment Company Act.
(i)
Information and Reports. Other than any of the following information containing
information provided or prepared by an Obligor, each Notice of Borrowing, each Monthly Report,
and all other written information, reports, certificates and statements (other than projections and
forward-looking statements) furnished by the Collateral Manager to any Secured Party for
purposes of or in connection with this Agreement, the other Facility Documents or the transactions
contemplated hereby or thereby are true, complete and correct in all material respects as of the
date such information is stated or certified. All projections and forward-looking statements
furnished by the Collateral Manager were prepared reasonably and in good faith as of the date on
which they were provided.
(j) ERISA. Neither the Collateral Manager nor any member of its ERISA Group has,
or during the past five years had, any liability or obligation with respect to any Plan or
Multiemployer Plan that would result in a Material Adverse Effect.
(k)
Taxes. The Collateral Manager has filed all U.S. federal income tax returns,
information statements, reports and all other material tax returns which are required to be filed by
it, if any, and has paid all U.S. federal income Taxes and all other material Taxes (including
mortgage recording Taxes) shown to be due and payable on such returns, if any, or pursuant to
any assessment received by any such Person, other than any such Taxes that are being contested
in good faith by appropriate proceedings and for which appropriate reserves in accordance with
GAAP have been established.
(l)
Eligibility. Each Collateral Loan included in a Monthly Report or a Borrowing
Base Calculation Statement required to be delivered by it under this Agreement as an Eligible
Collateral Loan was, in fact, an Eligible Collateral Loan at such time.
(m)
Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions. The
Collateral Manager and its subsidiaries and their respective directors, officers, managers and, to
its knowledge, its agents, are in compliance with Anti-Corruption Laws, Anti-Money Laundering
Laws and applicable Sanctions. None of (a) the Collateral Manager, its subsidiaries or their
respective directors, officers or managers, or (b) to their respective knowledge, any of their agents
that will act in any capacity in connection with or benefit from the credit facilities established
hereby, is a Sanctioned Person.
(n)
BDC Status. Main Street qualifies as an RIC and is an “investment company” that
has elected to be regulated as a “business development company” as defined in Section 2(a)(48)
of the Investment Company Act and is subject to regulation as such under the Investment
Company Act including Section 18, as modified by Section 61, of the Investment Company Act.
The business and other activities of Main Street, including but not limited to, the consummation
of the transactions contemplated by the Facility Documents to which Main Street is a party do not
result in any violations, with respect to Main Street, of the provisions of the Investment Company
Act or any rules, regulations or orders issued by the SEC thereunder, in each case, that are
applicable to Main Street.
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ARTICLE V
COVENANTS
Section 5.01.
Affirmative Covenants of the Borrower. The Borrower covenants and
agrees that, until the Collection Date:
(a)
Compliance with Agreements, Laws, Etc. It shall (i) duly observe and comply in
all material respects with all Applicable Laws relative to the conduct of its business or to its assets,
(b)
Enforcement. It shall not take any action, and will use commercially reasonable
efforts not to permit any action to be taken by others, that would release any Obligor from any of
(c)
Further Assurances. It shall promptly upon the reasonable request of any Agent
or the Required Lenders (through the Administrative Agent), at the Borrower’s expense, execute
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(ii) preserve and keep in full force and effect its legal existence, (iii) preserve and keep in full force
and effect its rights, privileges, qualifications and franchises, (iv) comply with the terms and
conditions of its Constituent Documents and comply in all material respects with its obligations
under each Related Document to which it is a party and (v) obtain, maintain and keep in full force
and effect all Governmental Authorizations, Private Authorizations and Governmental Filings
which are necessary or appropriate to properly carry out its business and the transactions
contemplated to be performed by it under the Facility Documents, its Constituent Documents and
the Related Documents to which it is a party, except, in the case of clause (iii) and clause (v),
where the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
such Obligor’s material covenants or obligations under any instrument or agreement included in
the Collateral, except in the case of (A) repayment of Collateral Loans, (B) subject to the terms of
this Agreement, (i) amendments to Related Documents that govern Defaulted Collateral Loans or
Ineligible Collateral Loans, (ii) amendments to Collateral Loans in accordance with the Collateral
Management Standard, and (iii) actions taken in connection with the work-out or restructuring of
any Collateral Loan in accordance with the provisions hereof, and (C) other actions by the
Collateral Manager to the extent not prohibited by this Agreement or as otherwise required hereby.
It will perform, and use commercially reasonable efforts to cause the Collateral Manager to
perform, all of their obligations and agreements contained in this Agreement or any other Facility
Document to which such Person is a party.
and deliver such further instruments and take such further action in order to maintain and protect
the Collateral Agent’s first-priority perfected security interest in the Collateral pledged by the
Borrower for the benefit of the Secured Parties free and clear of any Liens (other than Permitted
Liens). At the reasonable request of any Agent or the Required Lenders (through the
Administrative Agent), the Borrower shall promptly take, at the Borrower’s expense, such further
action in order to establish and protect the rights, interests and remedies created or intended to be
created under this Agreement in favor of the Secured Parties in the Collateral, including all actions
which are necessary to (x) enable the Secured Parties to enforce their rights and remedies under
this Agreement and the other Facility Documents, and (y) effectuate the intent and purpose of,
and to carry out the terms of, the Facility Documents. The Borrower will take such reasonable
action from time to time as shall be necessary to ensure that all assets (including all Covered
Accounts) of the Borrower constitute “Collateral” hereunder. Subject to
the foregoing, the Borrower will, and, upon the reasonable request of any Agent shall, at the
Borrower’s expense, take such other action (including executing and delivering or authorizing for
filing any required UCC financing statements) as shall be necessary to create and perfect a valid
and enforceable first-priority security interest on all Collateral acquired by the Borrower as
collateral security for the Obligations and will in connection therewith deliver such proof of
corporate action, incumbency of officers, opinions of counsel and other documents as is consistent
with those delivered by the Borrower pursuant to Section 3.01 on the Closing Date or as any Agent
or the Required Lenders (through the Administrative Agent) shall have reasonably requested.
(d)
Financial Statements; Other Information. It shall provide to the Administrative
Agent or cause to be provided to the Administrative Agent (with additional copies for each
Lender):
(i)
within 120 days after the end of each fiscal year of the Parent, each of its
audited consolidated balance sheets and related consolidated statements of operations,
consolidated statements of changes in net assets, consolidated statements of cash flows and
consolidated schedule of investments, as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year, all reported on by
(ii)
within 60 days after the end of each of the first three fiscal quarters of each
fiscal year of the Parent, its unaudited consolidated balance sheets and related consolidated
statements of operations and consolidated statements of changes in net assets as of the end
of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or periods of (or,
in the case of the consolidated balance sheets, as of the end of)
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independent public accountants of recognized national standing (without a “going
concern” or like qualification or exception and without any qualification or exception as
to the scope of such audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of operations of the Parent
and its consolidated subsidiaries on a consolidated basis in accordance with GAAP
consistently applied; provided, that the financial statements required to be delivered
pursuant to this clause (i) which are made available via EDGAR, or any successor system
of the Securities Exchange Commission, in the Parent's annual report on Form 10-K, shall
be deemed delivered to the Administrative Agent and the Lenders on the date such
documents are made so available; provided, further, that either (A) such financial
statements of the Parent required pursuant to this clause (i) would include a footnote
showing the balance sheets and statement of operations of the Borrower or (B) separate
audited balance sheets and related statements of operations, consolidated statements of
changes in net assets, consolidated statements of cash flows, as of the end of and for such
year, setting forth in each case in comparative form the figures for the previous fiscal year,
all reported on by independent public accountants of recognized national standing (without
a “going concern” or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such financial statements present
fairly in all material respects the financial condition and results of operations of the
Borrower in accordance with GAAP consistently applied would be provided;
the previous fiscal year, all certified by a Responsible Officer as presenting fairly in all
material respects the financial condition and results of operations of the Parent and its
consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes;
provided, that the financial statements required to be delivered pursuant to this clause (ii)
which are made available via EDGAR, or any successor system of the Securities Exchange
Commission, in Parent's quarterly report on Form 10-Q, shall be deemed delivered to the
Administrative Agent and the Lenders on the date such documents are made so available;
provided, further, that either (A) such financial statements of the Parent required pursuant
to this clause (ii) would include a footnote showing the balance sheets and statement of
operations of the Borrower or (B) separate balance sheets and statements of operations of
the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of
the fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the consolidated balance sheets, as
of the end of) the previous fiscal year would be separately provided;
(iii)
within 60 days after the end of a fiscal quarter (other than a fiscal year end)
(iv) within two Business Days after a Responsible Officer of the Collateral
Manager or a Responsible Officer of the Borrower obtains actual knowledge of the
occurrence and continuance of any (x) Default or (y) Event of Default, a certificate of a
Responsible Officer of the Borrower setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(v)
from time to time such additional information regarding the Borrower’s
financial position or business and the Collateral (including reasonably detailed
calculations of each Coverage Test, the Maximum Advance Rate Default Test and each
Collateral Quality Test) as the Administrative Agent or the Required Lenders (through the
Administrative Agent) may request if reasonably available to the Borrower;
(vi)
promptly after the incurrence of any obligation to a Plan or Multiemployer
Plan or the occurrence of any ERISA Event, notice of the incurrence of such obligation or
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in which a quarterly valuation statement for the Parent is to be delivered to the Parent
investors, copies of such quarterly valuation statement and 120 days after the end of each
fiscal year, copies of the quarterly valuation statements for the Parent; provided that in no
case shall less than two separate quarterly valuation statements be delivered for any fiscal
year (it being understood that (x) the schedule of investments embedded in any reports
which are made available via EDGAR, or any successor system of the Securities Exchange
Commission, in Parent's quarterly report on Form 10-Q or in Parent’s annual report on
Form 10-K delivered pursuant to clauses (i) and (ii) above shall be deemed to satisfy this
clause (iii) and (y) the financial statements required to be delivered pursuant to this clause
(iii) which are made available via EDGAR, or any successor system of the Securities
Exchange Commission, in Parent's quarterly report on Form 10-Q or in Parent’s annual
report on Form 10-K, shall be deemed delivered to the Administrative Agent and the
Lenders on the date such documents are made so available);
of such ERISA Event and copies of any communications with all Governmental
Authorities or any Multiemployer Plan with respect to such ERISA Event; and
(vii)
promptly following any reasonable request by the Administrative Agent or
any Lender, all documentation and other information that the Administrative Agent or such
Lender requests in order to comply with its ongoing obligations under applicable “know
your customer”, anti-money laundering and sanctions Laws, including the PATRIOT Act.
(e)
Access to Records and Documents. It shall permit the Administrative Agent (or
any Person designated by the Administrative Agent, subject to delivery of standard confidentiality
agreements or an agreement by such Person to comply with the provisions of Section 16.09) to,
(f)
Use of Proceeds.It shall use the proceeds of each Advance made hereunder
solely:
(i)
to fund or pay the purchase price of Collateral Loans or Eligible
Investments acquired by the Borrower in accordance with the terms and conditions set
forth herein (it being understood that the Borrower may request a Borrowing to (A) with
respect to the initial Advance, make a distribution to the Parent and to pay fees and
expenses in connection with this Agreement and the other Facility Documents and (B)
fund the applicable Advance Rate of one or more Collateral Loans either on the date of
acquisition or at a later time during the Reinvestment Period pursuant to Article II) or for
general corporate purposes;
(ii)
to fund additional extensions of credit under Revolving Collateral Loans
and Delayed Drawdown Collateral Loans purchased in accordance with the terms of this
Agreement;
(iii)
hereof; and
to fund the Revolving Reserve Account pursuant to Section 8.04 or 9.01
(iv)
so long as no Default or Event of Default shall have occurred and be
continuing, and provided that any amounts required to be funded or paid by the Borrower
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upon reasonable advance notice and during normal business hours, visit and inspect and make
copies thereof at reasonable intervals (i) its books, records and accounts relating to its business,
financial condition, operations, assets and its performance under the Facility Documents and the
Related Documents and to discuss the foregoing with its and such Person’s officers, partners,
employees and accountants, and (ii) all of its Related Documents, in each case all as often as the
Administrative Agent may reasonably request; provided that so long as no Event of Default has
occurred and is continuing, each Person entitled to so visit and inspect the Borrower’s records
under this clause (e) may only exercise its rights under this clause (e) twice during any fiscal year
of the Borrower (it being understood that the Borrower shall be responsible for all reasonable and
documented costs and expenses for only one such visit per fiscal year). The Administrative Agent
shall provide reasonable notice to the Lenders of any such visit or inspection shall provide each
Lender the opportunity to accompany the Administrative Agent on any such visit or inspection.
pursuant to clauses (i), (ii) and (iii) of this subsection (f) have been made, then to
distribute funds to its equityholders.
Without limiting the foregoing, it shall use the proceeds of each Advance in a manner that
does not, directly or indirectly, violate any provision of its Constituent Documents or any
Applicable Law, including Regulation T, Regulation U and Regulation X.
(g)
Information and Reports. Each Notice of Borrowing, each Monthly Report and all
other written information, reports, certificates and statements furnished by or on behalf of it to any
Secured Party for purposes of or in connection with this Agreement, the other Facility Documents
or the transactions contemplated hereby or thereby shall be true, complete and correct in all
material respects as of the date such information is stated or certified; provided that solely with
respect to information furnished by the Borrower which was provided to the Borrower from an
Obligor or any other third party (or is derived therefrom) with respect to a Collateral Loan, such
information shall only need to be true, complete and correct in all material respects to the actual
knowledge of the Borrower.
(h)
Opinions as to Collateral. On or before each five year anniversary of the Closing
Date, at the request of the Administrative Agent, it shall furnish to the Agents an opinion of
counsel addressed to the Agents and the Borrower relating to the continued perfection of the
security interest granted by the Borrower to the Collateral Agent hereunder.
(i)
No Other Business. The Borrower shall not engage in any business or activity other
than borrowing Advances pursuant to this Agreement, funding, acquiring, owning, holding,
administering, selling, enforcing, lending, exchanging, redeeming, pledging, contracting for the
management of and otherwise dealing with Collateral Loans, Eligible Investments and the other
Collateral in connection therewith and entering into and performing its obligations under the
Facility Documents, any applicable Related Documents and any other agreements contemplated
by this Agreement.
(j)
Tax Matters. The Borrower shall (and each Lender hereby agrees to) treat the
Advances as debt for U.S. Federal income tax purposes and will take no contrary position, unless
otherwise required pursuant to a closing agreement with the U.S. Internal Revenue Service or a
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non-appealable judgment of a court of competent jurisdiction. Notwithstanding any contrary
agreement or understanding, the Collateral Manager, the Borrower, the Agents and the Lenders
(and each of their respective employees, representatives or other agents) may disclose to any and
all Persons, without limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to them relating to such tax treatment and tax structure. The foregoing
provision shall apply from the beginning of discussions between the parties. For this purpose, the
tax treatment of a transaction is the purported or claimed U.S. tax treatment of the transaction
under applicable U.S. Federal, state or local Law, and the tax structure of a transaction is any fact
that may be relevant to understanding the purported or claimed U.S. tax treatment of the
transaction under applicable U.S. Federal, state or local Law. The Borrower shall at all times be
treated as an entity that is disregarded as separate from its owner (as defined in Treasury
Regulation Section 301.7701-2(a)) for U.S. federal income tax purposes and shall take all steps
necessary to ensure that the entity from which it is disregarded as separate is a U.S.
Person. The Borrower shall pay and discharge all Taxes, assessments, and governmental charges
or levies imposed upon it, its income or profits, or any property belonging to it, before any such
obligation becomes delinquent; provided that the Borrower shall not be required to pay any Tax,
assessment, charge or levy, if any, so long as the amount, applicability or validity thereof shall
currently be contested in good faith by adequate proceedings and adequate reserves therefor have
been established in accordance with GAAP.
(k) Collections. The Borrower (or the Collateral Manager on behalf of the Borrower)
shall direct any agent or administrative agent for any Collateral Loan (or, in the case of a
participation interest, the participation seller) to remit all payments and collections with respect
to such Collateral Loan and, if applicable, to direct the Obligor (or, in the case of a participation
interest, the participation seller) with respect to such Collateral Loan to remit all such payments
and collections with respect to such Collateral Loan directly to the Collection Account.
(l)
Priority of Payments. The Borrower shall direct the Collateral Agent to apply all
Interest Proceeds and Principal Proceeds solely in accordance with the Priority of Payments and
the other provisions of this Agreement.
(m)
Compliance with Legal Opinions. The Borrower shall take all other actions
necessary to maintain the accuracy of the factual assumptions set forth in the legal opinions of
Dechert LLP, as special counsel to the Borrower, issued in connection with the Purchase and
Contribution Agreement and relating to the issues of substantive consolidation and true sale of
certain Collateral Loans.
Section 5.02.
Negative Covenants of the Borrower.
The Borrower covenants and
agrees that until the Collection Date:
(a)
Restrictive Agreements. It shall not enter into or suffer to exist or permit to become
effective any agreement that prohibits, limits or imposes any condition upon its ability to create,
incur, assume or suffer to exist any Lien (other than Permitted Liens) upon any of its property or
revenues constituting Collateral, whether now owned or hereafter acquired, to secure its
obligations under the Facility Documents other than this Agreement and the other Facility
Documents.
(b)
Liquidation; Merger; Sale of Collateral. It shall not consummate any plan of
liquidation, dissolution, partial liquidation, merger or consolidation (or suffer any liquidation,
dissolution or partial liquidation) nor sell, transfer, exchange or otherwise dispose of any of its
assets, or enter into an agreement or commitment to do so or enter into or engage in any business
with respect to any part of its assets, except as expressly permitted by this Agreement and the
other Facility Documents (including in connection with the repayment in full of the Obligations).
(c)
Amendments to Constituent Documents, etc.Without the consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed) (i) it shall not
amend, modify or take any action inconsistent in any material respect with its Constituent
Documents and (ii) it will not amend, modify or waive any term or provision in any Facility
Document (other than in accordance with its terms, including any provision thereof requiring the
consent of the Administrative Agent or all or a specified percentage of the Lenders).
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(d)
ERISA. Neither it nor any member of its ERISA Group shall establish, contribute
to, or have any liability to any Plan or Multiemployer Plan. It shall not take any action, or omit
to take any action, that results in its underlying assets to constitute “plan assets” for purposes of
the Plan Asset Rule or the Collateral being deemed to be “plan assets” for purposes of the Plan
Asset Rule.
(e)
Liens. It shall not create, assume or suffer to exist any Lien on any of its assets
now owned or hereafter acquired by it at any time, except for Permitted Liens or as otherwise
expressly permitted by this Agreement and the other Facility Documents.
(f)
Margin Requirements. It shall not (i) extend credit to others for the purpose of
buying or carrying any Margin Stock in such a manner as to violate Regulation T or Regulation
U or (ii) use all or any part of the proceeds of any Advance, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that violates the provisions of
the Regulations of the Board of Governors, including, to the extent applicable, Regulation U and
Regulation X.
(g)
Restricted Payments. It shall not make, directly or indirectly, any Restricted
Payment (whether in the form of cash or other assets) or incur any obligation (contingent or
otherwise) to do so; provided, however, that the Borrower shall be permitted to make Restricted
Payments from (i) funds distributed to it pursuant to the Priority of Payments or (ii) funds from
an Advance pursuant to the use of proceeds in Section 5.01(f) hereof.
(h)
Changes to Filing Information. It shall not change its name, its chief place of
business, its chief executive office, the office in which the Borrower maintains its limited liability
company books and records or its jurisdiction of organization from that referred to in Section
4.01(a) or Schedule 5, as applicable, unless it gives ten days’ prior written notice to the Agents
and takes all actions that the Administrative Agent or the Required Lenders (through the
Administrative Agent) reasonably request and determine to be necessary to protect and perfect
the Collateral Agent’s perfected security interest in the Collateral.
(i)
Transactions with Affiliates. It shall not sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates (including sales of Defaulted
Collateral Loans and other Collateral Loans), except as permitted or required under the Facility
Documents, unless such transaction is upon terms no less favorable to the Borrower than it would
obtain in a comparable arm’s length transaction with a Person that is not an Affiliate (it being
agreed that any purchase or sale at par shall be deemed to comply with this provision). For the
avoidance of doubt, (i) nothing in this clause (i) shall prohibit the Borrower from transferring or
distributing the Collateral Loans to the Parent or an Affiliate, as applicable, in accordance with
Article X and (ii) the Borrower may make dividends or distributions to the Parent from amounts
released to the Borrower pursuant to the Priority of Payments at any time in accordance with its
Constituent Documents.
(j)
Investment Company Restriction. It shall not become required to register as an
“investment company” under the Investment Company Act.
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(k)
Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions. It will not
request any Borrowing, and shall not use the proceeds of any Borrowing (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 or Anti-Money Laundering
Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or
transaction of or with any Sanctioned Person or in any Sanctioned Country or (iii) in any manner
that would result in the violation of any Sanctions.
(l)
No Claims Against Advances. Subject to Applicable Law, it shall not claim any
credit on, make any deduction from, or dispute the enforceability of payment of the principal or
interest payable (or any other amount) in respect of the Advances or assert any claim against any
present or future Lender, by reason of the payment of any taxes levied or assessed upon any part
of the Collateral.
(m)
Indebtedness; Guarantees; Securities; Other Assets. It shall not incur or assume
or guarantee any indebtedness, obligations (including contingent obligations) or other liabilities,
or issue any additional securities, whether debt or equity, in each case other than (i) pursuant to
or as expressly permitted by this Agreement and the other Facility Documents, (ii) obligations
under its Constituent Documents or (iii) pursuant to customary indemnification, expense
reimbursement and similar provisions under the Related Documents. The Borrower shall not
acquire any Collateral Loans or other property other than as expressly permitted under the Facility
Documents; it being understood and agreed that the Borrower shall be permitted to acquire
Collateral Loans from its Affiliates and from unaffiliated third parties pursuant to Article X.
(n)
Validity of this Agreement. It shall not (i) take any action or omit to take any action,
the result of which would permit the validity or effectiveness of any Facility Document or any
grant of Collateral hereunder to be impaired, or permit the Lien of this Agreement to be amended,
hypothecated, subordinated, terminated or discharged, or take any action or omit to take any
action, the result of which would permit any Person to be released from any covenant or obligation
with respect to this Agreement (except in accordance with its terms) and (ii) except as permitted
by any Facility Document, take any action that would permit the Lien of this Agreement not to
constitute a valid first priority perfected security interest in the Collateral (subject to Permitted
Liens).
(o)
Priority of Payments. It shall not pay any distributions from amounts on deposit in
the Collection Account other than in accordance with the Priority of Payments (it being understood
that any amounts paid to the Borrower pursuant to the Priority of Payments may be distributed to
the Parent).
(p)
Subsidiaries. It shall not have or permit the formation of any subsidiaries, except
in connection with the receipt of equity securities pursuant to an exercise of remedies with respect
to a Collateral Loan or any work-out or restructuring of a Collateral Loan or to hold foreclosed
property.
(q)
Name. It shall not conduct business under any name other than its own.
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(r)
Employees. It shall not have any employees (other than officers and directors to
the extent they are employees).
(s)
Non-Petition. The Borrower shall not be party to any agreements under which it
has any material obligations or liability (direct or contingent) without using commercially
(t)
Certificated Securities. The Borrower shall not acquire or hold any Certificated
Securities in bearer form in a manner that does not satisfy the requirements of United States
Treasury Regulations section 1.165-12(c) (as determined by the Collateral Manager).
(u)
Beneficial Ownership Certificate.Promptly following any change in the
information included in a Beneficial Ownership Certificate that would result in a change to the
list of beneficial owners identified in such Beneficial Ownership Certificate, or a change in the
address of any beneficial owners, the Borrower shall (x) notify the Administrative Agent and the
Lenders and (y) execute and deliver to the Administrative Agent and each Lender an updated
Beneficial Ownership Certificate.
Section 5.03.
Affirmative Covenants of the Collateral Manager.
The Collateral
Manager covenants and agrees that until the Collection Date:
(a)
Compliance with Agreements, Laws, Etc. It shall (i) duly observe and comply in
(b)
Enforcement. It shall not take any action, and will use commercially reasonable
efforts not to permit any action to be taken by others within its control, that would release any
Obligor from any of such Obligor’s material covenants or obligations under any instrument or
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reasonable efforts to include customary “non-petition” and “limited recourse” provisions therein
(and shall not amend or eliminate such provisions in any agreement to which it is party), except
for loan agreements, related loan documents, bond indentures and related bond documents, any
agreements related to the purchase and sale of any Collateral Loans which contain customary (as
determined by the Collateral Manager) purchase or sale terms or which are documented using
customary (as determined by the Collateral Manager) loan trading documentation, in connection
with the Collateral Loans and any agreement that does not impose a material obligation on the
Borrower and that is of a type that customarily does not include “non-petition” or “limited
recourse” provisions (including customary service contracts and engagement letters entered into
with third party service providers (including independent accountants and providers of
independent managers)).
all material respects with all Applicable Laws relative to the conduct of its business or to its assets,
(ii) preserve and keep in full force and effect its legal existence, (iii) preserve and keep in full
force and effect its rights, privileges, qualifications and franchises, except where the failure to do
so could not reasonably be expected to result in a Material Adverse Effect, (iv) comply with the
terms and conditions of each Constituent Document and each Related Document in all material
respects to which it is a party, and (v) obtain, maintain and keep in full force and effect all
Governmental Authorizations, Private Authorizations and Governmental Filings which are
necessary or appropriate to properly carry out its business and the transactions contemplated to
be performed by it under the Facility Documents, the Constituent Documents and the Related
Documents to which it is a party, except where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
agreement included in the Collateral, except in the case of (A) repayment of Collateral Loans,
(B)subject to the terms of this Agreement, (1) amendments to Related Documents that
govern Defaulted Collateral Loans or Ineligible Collateral Loans, (2) amendments to Collateral
Loans in accordance with the Collateral Management Standard, and (3) actions taken in
connection with the work-out or restructuring of any Collateral Loan in accordance with the
provisions hereof, and
(C)other actions by the Collateral Manager to the extent not prohibited by this Agreement or
as otherwise required hereby.
(c)
Further Assurances. It shall promptly at the Borrower’s expense, execute and
deliver such further instruments and take such further action in order to maintain and protect the
(d)
Access to Records and Documents. It shall permit the Administrative Agent (or
any Person designated by the Administrative Agent) to, upon reasonable advance notice and
during normal business hours, visit and inspect and make copies thereof at reasonable intervals
(e)
Other Information. The Collateral Manager shall provide to the Agents or cause to
be provided to the Agents (with additional copies for each Lender):
(i)
within two Business Days after a Responsible Officer of the Collateral
Manager obtains actual knowledge of the occurrence and continuance of any (A) Default,
(B) Event of Default, (C) Potential Collateral Manager Termination Event, (D) Collateral
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Collateral Agent’s first-priority perfected security interest in the Collateral pledged by the
Borrower for the benefit of the Secured Parties free and clear of any Liens (subject to Permitted
Liens). The Collateral Manager shall promptly take, at the Borrower’s expense, such further
action in order to establish and protect the rights, interests and remedies created or intended to be
created under this Agreement in favor of the Secured Parties in the Collateral, including all actions
which are necessary to (x) enable the Secured Parties to enforce their rights and remedies under
this Agreement and the other Facility Documents, and (y) effectuate the intent and purpose of, and
to carry out the terms of, the Facility Documents. In addition, the Collateral Manager will take
such reasonable action from time to time as shall be necessary to ensure that all assets (including
all Covered Accounts) of the Borrower constitute “Collateral” hereunder. Subject to the
foregoing, the Collateral Manager will at the Borrower’s expense, take such other action
(including executing and delivering or authorizing for filing any required UCC financing
statements) as shall be necessary to create and perfect a valid and enforceable first-priority security
interest on all Collateral acquired by the Borrower as collateral security for the Obligations.
(i) its books, records and accounts relating to its business, financial condition, operations, assets
and its performance under the Facility Documents and the Related Documents and to discuss the
foregoing with its and such Person’s officers, partners, employees and accountants, and (ii) all of
its Related Documents, in each case all as often as the Administrative Agent may reasonably
request; provided that so long as no Event of Default has occurred, each Person entitled to so visit
and inspect the Collateral Manager’s records under this paragraph (d) may only exercise its rights
under this paragraph (d) twice during any fiscal year of the Collateral Manager (it being
understood that the Borrower shall be responsible for all reasonable and documented costs and
expenses for only one such visit per fiscal year). The Administrative Agent shall provide
reasonable notice to the Lenders of any such visit or inspection shall provide each Lender the
opportunity to accompany the Administrative Agent on any such visit or inspection.
Manager Termination Event or (E) any material breach by the Borrower or the Parent of
any representations, warranties, agreements or covenants hereunder or under the Purchase
and Contribution Agreement, a certificate of a Responsible Officer setting forth the details
thereof and the action which the Collateral Manager is taking or proposes to take with
respect thereto;
(ii)
from time to time such additional information regarding the Collateral
(including reasonably detailed calculations of each Coverage Test, the Collateral Quality
Test and the Maximum Advance Rate Default Test) as the Administrative Agent or the
Required Lenders (through the Administrative Agent) may reasonably request if
reasonably available without undue burden or expense and able to be disclosed by the
Collateral Manager;
(iii)
a Borrowing Base Calculation Statement on (A) each date on which the
Collateral Manager sells or substitutes (or commits to sell or substitute, as the case may
be) any Collateral Loan, (B) the date on which the Collateral Manager obtains knowledge
of any Material Modification to a Collateral Loan or that a Collateral Loan has become a
Defaulted Collateral Loan to the extent that the Borrowing Base has changed as a result of
such Material Modification or as a result of such Collateral Loan becoming a Defaulted
Collateral Loan and (C) each other date reasonably requested by the Administrative Agent
upon at least two (2) Business Days’ notice to the Collateral Manager; and
(iv)
promptly following any reasonable request by the Administrative Agent or
any Lender, all documentation and other information that the Administrative Agent or such
Lender requests in order to comply with its ongoing obligations under applicable “know
your customer”, anti-money laundering and sanctions Laws, including the PATRIOT Act.
(g)
Collections. The Collateral Manager shall direct any agent or administrative agent
for any Collateral Loan (or, in the case of a participation interest, the participation seller) to remit
all payments and collections with respect to such Collateral Loan and, if applicable, to direct the
Obligor (or, in the case of a participation interest, the participation seller) with respect to such
Collateral Loan to remit all such payments and collections with respect to such Collateral Loan
directly to the Collection Account.
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(f) Information and Reports. Each Notice of Borrowing, each Monthly Report and all
other written information, reports, certificates and statements furnished by or on behalf of the
Collateral Manager to any other Secured Party for purposes of or in connection with this
Agreement, the other Facility Documents or the transactions contemplated hereby or thereby shall
be true, complete and correct in all material respects as of the date such information is stated or
certified; provided that solely with respect to information furnished by the Collateral Manager
which was provided to the Collateral Manager from an Obligor or any other third party (or is
derived therefrom) with respect to a Collateral Loan, such information shall only need to be true,
complete and correct in all material respects to the actual knowledge of the Collateral Manager.
(h)
Priority of Payments. The Collateral Manager shall instruct the Collateral Agent
to apply all Interest Proceeds and Principal Proceeds solely in accordance with the Priority of
Payments and the other provisions of this Agreement.
(i) Taxable Mortgage Pool. The Collateral Manager shall not permit the sum of the
outstanding principal balances of all Collateral Loans owned by the Borrower and that are
principally secured by an interest in real property (within the meaning of Treasury Regulation
Section 301.7701(i)-1(d)(3)) to exceed 40% of the Principal Balance of all Collateral Loans
owned by the Borrower.
(j)
Maintenance of RIC Status and Business Development Company. Main Street shall
maintain its status as an RIC under the Code and as a “business development company” under the
Investment Company Act.
Section 5.04.Negative Covenants of the Collateral Manager. The Collateral Manager
covenants and agrees that until the Collection Date:
(a)
Restrictive Agreements. It shall not enter into or suffer to exist or permit to become
effective any agreement that prohibits, limits or imposes any condition upon its ability to perform
its obligations under the Facility Documents.
(b)
Validity of this Agreement. It shall not (i) take any action or omit to take any action,
the result of which would permit the validity or effectiveness of any Facility Document or any
grant of Collateral hereunder to be impaired, or permit the Lien of this Agreement to be amended,
hypothecated, subordinated, terminated or discharged, or take any action or omit to take any
action, the result of which would permit any Person to be released from any covenant or obligation
with respect to this Agreement (except in accordance with its terms) and (ii) except as permitted
by any Facility Document, take any action that would permit the Lien of this Agreement not to
constitute a valid first priority perfected security interest in the Collateral (subject to Permitted
Liens).
(c)
Liquidation; Merger; Disposition of Assets. It shall not consummate any plan of
liquidation, dissolution, partial liquidation, merger or consolidation (or suffer any liquidation,
dissolution or partial liquidation) nor sell, transfer, exchange or otherwise dispose of all or
substantially all of its assets unless the Collateral Manager or an Affiliate thereof is the surviving
Person and no Collateral Manager Termination Event results therefrom. The Borrower shall not
enter into any plan of division or other statutory division under Delaware law (or any comparable
event under a different jurisdiction’s laws) without the prior written consent of the Administrative
Agent.
Section 5.05. Certain Undertakings Relating to Separateness. (a) Without limiting any,
and subject to all, other covenants of the Borrower and the Collateral Manager contained in this
Agreement, the Borrower (and the Collateral Manager in acting on behalf or for the benefit of the
Borrower) shall conduct its business and operations separate and apart from that of any other
Person (including the Parent and its Affiliates) and in furtherance of the foregoing:
(1)
The Borrower shall maintain its accounts, financial statements, books,
accounting and other records, and other documents separate from those of any other
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Person, provided that the Borrower may be consolidated into the Parent solely for tax and
accounting purposes.
(2)
The Borrower shall not commingle or pool any of its funds or assets with
those of any Affiliate or any other Person, and it shall hold all of its assets in its own name,
except as otherwise permitted or required under the Facility Documents.
(3)
The Borrower shall conduct its own business in its own name and, for all
purposes, shall not operate, or purport to operate, collectively as a single or consolidated
business entity with respect to any Person.
(4)
The Borrower shall pay its own debts, liabilities and expenses (including
overhead expenses, if any) only out of its own assets as the same shall become due;
provided, however, in its capacity as Collateral Manager, Main Street may from time to
time advance expenses of the Borrower for which Main Street is later reimbursed pursuant
to the Priority of Payments.
(5)
The Borrower has observed, and shall observe all (A) limited liability
(6)
The Borrower shall not (A) guarantee, become obligated for, or hold itself
or its credit out to be responsible for or available to satisfy, the debts or obligations of any
other Person or (B) control the decisions or actions respecting the daily business or affairs
of any other Person except as permitted by or pursuant to the Facility Documents.
(7)
The Borrower shall, at all times, hold itself out to the public as a legal entity
separate and distinct from any other Person; provided that the assets of the Borrower may
be consolidated for accounting purposes and included in consolidated financial statements
of the Parent as required by GAAP or Applicable Law.
(8)
The Borrower shall not identify itself as a division of any other Person.
(9)
The Borrower shall maintain its assets in such a manner that it will not be
costly or difficult to segregate, ascertain or identify its individual assets from those of any
Affiliate or any other Person.
(10)
The Borrower shall not use its separate existence to perpetrate a fraud in
violation of Applicable Law.
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company formalities and (B) other organizational formalities, in each case to the extent
necessary or advisable to preserve its separate existence, and shall preserve its existence,
and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or
otherwise change its limited liability company agreement in a manner that would
adversely affect the existence of the Borrower as a bankruptcy-remote special purpose
entity. The Borrower shall have at least one Independent Manager at all times (subject to
the time periods for replacement of Independent Managers that have resigned or have been
removed set forth in the Borrower’s Constituent Documents).
(11)
The Borrower shall not, in connection with the Facility Documents, act
with an intent to hinder, delay or defraud any of its creditors in violation of Applicable
Law.
(12)Any transaction between the Borrower and its Affiliates shall be on arm’s
length terms.
(13)
Except as permitted by or pursuant to the Facility Documents, the Borrower
shall not grant a security interest or otherwise pledge its assets for the benefit of any other
Person.
(14)
The Borrower shall not acquire any securities or debt instruments of the
Parent, any Affiliates of the foregoing or any other Person (except for equity interests in
Obligors in connection with the exercise of any remedies with respect to a Collateral Loan
or any exchange offer, work-out or restructuring of a Collateral Loan subject to the
provisions of Section 5.02(p) in the case of any subsidiary formed in connection
therewith).
(15)
The Borrower shall not make loans or advances to any Person, except for
the Collateral Loans and as permitted by or pursuant to the Facility Documents.
(16)
The Borrower shall make no transfer of its Collateral Loans except as
permitted by or pursuant to the Facility Documents.
(17)
The Borrower shall file its own tax returns separate from those of any other
Person, except to the extent that the Borrower is not required to file tax returns under
Applicable Law or is not permitted to file its own tax returns separate from those of any
other Person.
(18)
The Borrower shall not acquire obligations or securities of its members.
(19)
The Borrower shall, to the extent used in its business, use separate
stationery, invoices and checks.
(20)
The Borrower shall correct any known misunderstanding regarding its
separate identity.
(21)
The Borrower shall maintain adequate capital in light of its contemplated
business operations.
(22)
The Borrower shall at all times be organized as a single-purpose entity with
Constituent Documents substantially similar to those in effect on the Closing Date.
(23)
The Borrower shall at all times conduct its business so that any assumptions
made with respect to the Borrower in any “substantive non-consolidation” opinion
delivered in connection with the Facility Documents will continue to be true and correct
in all respects.
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ARTICLE VI
EVENTS OF DEFAULT
Section 6.01.
Events of Default. “Event of Default”, wherever used herein, means any
one of the following events (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to any Law of any
Governmental Authority):
(a)
(i) a default in the payment, when due and payable, of (i) any interest, Commitment
Fee or principal in respect of the Advances and (other than a default on the Final Maturity Date)
(b)
the failure to reduce the Advances to $0 on the Final Maturity Date;
(c)
the Borrower or the pool of Collateral becomes an investment company required
to be registered under the Investment Company Act;
(d)
except as otherwise provided in this Section 6.01, a default in any material respect
in the performance, or breach in any material respect, of any covenant or agreement of the
Borrower or the Parent under this Agreement or the other Facility Documents to which it is a party
(e)
the rendering of one or more final judgments, decrees or orders by a court or
arbitrator of competent jurisdiction for the payment of money in excess individually or in the
aggregate of $20,000,000 against the Parent, or $500,000 against the Borrower (in each case net
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such default has not been cured within two (2) Business Days after the due date of such payment,
or (ii) any other payment required to be made pursuant to any Facility Document and such default
has not been cured within three (3) Business Days after the date of such payment; provided that,
in the case of a default resulting from a failure to disburse due to an administrative error or
omission by the Collateral Agent or the Administrative Agent, such default will not be an Event
of Default unless such failure continues for five (5) Business Days after a Responsible Officer of
the Collateral Agent or the Administrative Agent receives written notice or has actual knowledge
of such administrative error or omission (irrespective of whether the cause of such administrative
error or omission has been determined);
(it being understood, without limiting the generality of the foregoing, that any failure to meet any
Concentration Limitation, Collateral Quality Test, Coverage Test or the Maximum Advance Rate
Default Test is not an Event of Default under this clause (d)), or the failure of any representation
or warranty of the Borrower or the Parent made in this Agreement or in any other Facility
Document to which it is a party to be correct, in each case, in all material respects when the same
shall have been made, and the continuation of such default, breach or failure for a period of thirty
(30) days (provided that breaches of Sections 5.01(a)(ii), 5.01(d), 5.01(e), 5.01(f) and 5.02 shall
not have any cure period) after the earlier of (x) written notice to the Borrower and the Collateral
Manager (which may be by e-mail) by any Agent, and (y) a Responsible Officer of the Borrower,
the Parent or the Collateral Manager has acquired actual knowledge thereof (for the avoidance of
doubt, to the extent the Parent purchases or substitutes (in accordance with the provisions of the
Purchase and Contribution Agreement) an Eligible Collateral Loan for a Collateral Loan for which
the representation in Section 4.01(q) was breached, such breach shall be deemed cured hereunder);
of amounts covered by insurance), and the aforementioned Persons shall not have either (x)
discharged or provided for the discharge of any such judgment, decree or order in accordance
with its terms or (y) perfected a timely appeal of such judgment, decree or order and caused the
execution of same to be stayed during the pendency of the appeal, in each case, within sixty (60)
days from the date of entry thereof;
(f)
an Insolvency Event relating to the Borrower or the Parent occurs;
(g)
any Collateral Manager Termination Event occurs;
(h)
(1) any material provision of a Facility Document shall (except in accordance with
its terms) terminate, cease to be effective or cease to be the legally valid, binding and enforceable
obligation of the Borrower or the Parent, (2) the Borrower or the Parent shall, directly or indirectly,
contest in any manner the effectiveness, validity, binding nature or enforceability of any Facility
Document or any Lien purported to be created thereunder, or (3) any Lien securing any obligation
under any Facility Document shall, in whole or in part, cease to be a first priority perfected security
interest of the Collateral Agent except Permitted Liens and as otherwise expressly permitted in
accordance with the applicable Facility Document;
(i)
thereof;
the occurrence of a Change of Control described in clause (1) of the definition
(j)
the Borrower ceases to have a valid ownership interest in all of the Collateral
(subject to Permitted Liens);
(k)
the Borrower shall assign or attempt to assign any of its rights, obligations, or
duties under the Facility Documents without the prior written consent of each Lender;
(l)
on any Monthly Reporting Date, the Interest Coverage Ratio Test is not satisfied;
(m)
the Maximum Advance Rate Default Test shall not be satisfied and such failure
shall continue for two (2) Business Days after the earlier of (x) written notice to the Borrower
(which may be by e-mail) by the Administrative Agent and (y) a Responsible Officer of the
Borrower has acquired actual knowledge thereof; provided that if the Collateral Manager (i)
furnishes written evidence to the Administrative Agent within such two (2) Business Day period
of a cure plan acceptable to the Administrative Agent, in its sole discretion, then the grace period
hereunder shall be extended to twelve (12) Business Days;
(n)
the Borrower fails to have at least one Independent Manager; provided that the
resignation of an Independent Manager or the removal of an Independent Manager for “cause”
shall not affect this clause (n) unless the Borrower fails to appoint a new Independent Manager
within ten (10) Business Days of the effective date of such removal or resignation;
(o)
any Monthly Report shall fail to be delivered when due and such failure shall
continue for two (2) Business Days; or
(p)
(i) the Internal Revenue Service shall file notice of a Lien pursuant to Section
6323 of the Code with regard to any asset of the Borrower and such Lien shall not have
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been released within five (5) Business Days or (ii) the PBGC shall file notice of a Lien pursuant
to Section 4068 of ERISA or Section 303(k) of ERISA with regard to any asset of the Borrower
and such Lien shall not have been released within five (5) Business Days, unless, in each case, a
reserve has been established therefor in accordance with GAAP and such action is being diligently
contested in good faith by appropriate proceedings.
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Upon a Responsible Officer of the Borrower or Collateral Manager obtaining knowledge
of the occurrence of an Event of Default, each of the Borrower and the Collateral Manager shall
promptly (and in any event within two (2) Business Days) notify each other and the Agents,
specifying each specific Event(s) of Default that has occurred as well as all other Events of Default
that are then known to be continuing. Upon the occurrence of an Event of Default known to a
Responsible Officer of the Collateral Agent or the Administrative Agent, the Collateral Agent or
the Administrative Agent shall promptly notify the other Agent (and the Administrative Agent
will notify the Lenders promptly) of such Event of Default in writing.
Upon the occurrence and during the continuance of any Event of Default, in addition to
all rights and remedies specified in this Agreement and the other Facility Documents, including
Article VII, and the rights and remedies of a secured party under Applicable Law, including the
UCC (which rights shall be cumulative), the Administrative Agent may, in its sole discretion, and
shall, at the request of the Majority Lenders, by notice to the Borrower (with a copy to the
Collateral Agent and the Collateral Administrator), do any one or more of the following: (1)
declare the Commitments to be terminated, whereupon the Commitments shall be terminated,
and/or (2) declare the principal of and the accrued Interest on the Advances and all other
Obligations whatsoever payable by the Borrower hereunder to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby waived by the Borrower; provided
that, upon the occurrence of any Event of Default described in clause (f) of Section 6.01, the
Commitments shall automatically terminate and the Advances and all such other amounts shall
automatically become due and payable, without any further action by any Person.
In addition, upon the occurrence and during the continuation of an Event of Default (and
with respect to the remedy provided in clause (w) below, upon the occurrence and during the
continuation of an Event of Default described in clause (g) above), following written notice by the
Administrative Agent (provided in its sole discretion or at the direction of the Majority Lenders)
to the Collateral Manager of the exercise of control rights with respect to the Collateral, the
Administrative Agent may, in its sole discretion, and shall, at the request of the Majority Lenders,
exercise such rights, including: (v) the exercise of the Collateral Manager’s rights and obligations
under the Facility Documents, including its unilateral power to (A) consent to modifications to
Collateral Loans, (B) take any discretionary action with respect to Collateral Loans and (C) direct
the acquisition, sales and other dispositions of Collateral Loans; (w) subject to delivery of a
Collateral Manager Termination Notice and the occurrence or declaration of a Collateral Manager
Termination Event, remove the Collateral Manager and transfer the Collateral Manager’s rights
and obligations under the Facility Documents to a Successor Collateral Manager (provided that
the Collateral Manager shall have the option to repurchase the entire Collateral portfolio so long
as (1) the Collateral Manager provides notice to the Administrative Agent of its intent to acquire
and/or refinance the entire Collateral portfolio promptly following receipt of notice of the
Administrative Agent’s intent to transfer management
of the Collateral Manager’s rights and obligations under the Facility Documents to a Successor
Collateral Manager, (2) the Proceeds of such acquisition and/or refinancing are sufficient to
extinguish all Obligations under the Facility Documents (other than unasserted contingent
obligations) and (3) such acquisition and/or refinancing is completed by 4:00 p.m. on the tenth
(10th) Business Day following receipt of the Administrative Agent’s notice of intent to transfer
management of the Collateral Manager’s rights and obligations under the Facility Documents to
a Successor Collateral Manager); (x) if the Collateral Manager is not terminated or otherwise
replaced, to require the Collateral Manager to obtain the consent of the Administrative Agent
before agreeing to any modification of any Collateral Loan, taking any discretionary action with
respect to any Collateral Loan or causing the Borrower to sell or otherwise dispose of any
Collateral Loan; (y) if the Collateral Manager is not terminated or otherwise replaced, to require
the Collateral Manager to cause the Borrower to sell or otherwise dispose of any Collateral Loan
as directed by the Administrative Agent pursuant to Section 7.03, and (z) with respect to any
specific Collateral Loan, to require the Collateral Manager to take such discretionary action with
respect to such Collateral Loan as directed by the Administrative Agent. In connection with any
sale or proposed sale of the Collateral during the continuance of an Event of Default (whether
pursuant to the Facility Documents or Applicable Law), the Borrower, the Parent or the Collateral
Manager (or any Affiliate or designee thereof) shall have the exclusive right to acquire and/or
refinance all Collateral Loans (but not in part) so long as (1) the Borrower, the Parent or the
Collateral Manager (or any Affiliate or designee thereof) provides notice to the Administrative
Agent of its intent to acquire and/or refinance the entire Collateral portfolio by 4:00 p.m. on the
tenth (10th) Business Day following receipt of notice of the Administrative Agent’s intent to
liquidate the Collateral, (2) the Proceeds of such acquisition and/or refinancing are sufficient to
extinguish all Obligations under the Facility Documents (other than unasserted contingent
obligations) and (3) such acquisition and/or refinancing is completed within sixty (60) days of the
date of the Administrative Agent’s notice of intent to liquidate the Collateral.
(a)
the Collateral Manager breaches in any material respect any covenant or agreement
applicable to it under this Agreement or any other Facility Document to which it is a party (it
being understood that failure to meet any Coverage Test, Concentration Limitation, Collateral
Quality Test or the Maximum Advance Rate Default Test is not a breach under this subclause (a)),
and, if capable of being cured, is not cured within 30 days (provided that breaches of Sections
5.03(e) and 5.04 shall not have any cure period) of the earlier of (i) a Responsible Officer of the
Collateral Manager acquiring actual knowledge of such breach or (ii) its receiving written notice
from any Agent of such breach;
(b)
the failure of any representation, warranty, or certification made or delivered by
the Collateral Manager in or pursuant to this Agreement or any other Facility Document to be
correct in any material respect when made and, if capable of being cured, is not cured within 30
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Section 6.02. Collateral Manager Termination Events. “Collateral Manager Termination
Event”, wherever used herein, means any one of the following events (whatever the reason for
such Collateral Manager Termination Event and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any Law of any Governmental Authority):
days of the earlier of (i) a Responsible Officer of the Collateral Manager acquiring actual
knowledge of such breach or (ii) its receiving written notice from any Agent of such failure;
(c)
(1) any material provision of a Facility Document shall (except in accordance with
its terms) terminate, cease to be effective or cease to be the legally valid, binding and enforceable
obligation of the Collateral Manager or (2) the Collateral Manager shall, directly or indirectly,
contest in any manner the effectiveness, validity, binding nature or enforceability of any Facility
Document or any Lien purported to be created thereunder;
(d)
the rendering of one or more final judgments, decrees or orders by a court or
arbitrator of competent jurisdiction for the payment of money in excess individually or in the
aggregate of $20,000,000 against the Collateral Manager (net of amounts covered by insurance),
and the Collateral Manager shall not have either (x) discharged or provided for the discharge of
any such judgment, decree or order in accordance with its terms or (y) perfected a timely appeal
of such judgment, decree or order and caused the execution of same to be stayed during the
pendency of the appeal, in each case, within sixty (60) days from the date of entry thereof;
(e) the failure of the Collateral Manager to make any payment when due (after giving
effect to any related grace period set forth in the related agreements) under one or more
agreements for borrowed money to which the Collateral Manager is a borrower thereunder in an
aggregate amount in excess of $20,000,000, whether or not waived;
(f)
management;
Main Street shall fail to maintain at least $2,000,000,0000 of assets under
(g)
the occurrence of an Event of Default;
(h)
a Change of Control in respect of the Collateral Manager occurs;
(i)
an Insolvency Event relating to the Collateral Manager occurs;
(j)
on any Monthly Report Determination Date, the Collateral Default Ratio shall
exceed 10.00%; or
(k)
(i) the occurrence of an act by the Collateral Manager that constitutes fraud or
criminal activity in the performance of its obligations under the Facility Documents (as determined
Upon the occurrence of a Collateral Manager Termination Event actually known to a
Responsible Officer of the Administrative Agent, the Administrative Agent shall promptly notify
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pursuant to a final adjudication by a court of competent jurisdiction) or the Collateral Manager
being indicted for a criminal offense materially related to its business of providing asset
management services and such indictment remains undismissed for at least 90 days or (ii) any
Responsible Officer of the Collateral Manager primarily responsible for the performance by the
Collateral Manager of its obligations under the Facility Documents (in the performance of his or
her investment management duties) is indicted for a criminal offense materially related to the
business of the Collateral Manager providing asset management services and continues to have
responsibility for the performance by the Collateral Manager hereunder for a period of ten (10)
days after such indictment.
the other Agent (and the Administrative Agent will notify the Lenders promptly) of such
Collateral Manager Termination Event in writing. Upon the occurrence and during the
continuance of a Collateral Manager Termination Event, the Administrative Agent, by written
notice to the Collateral Manager (with a copy to the Custodian, Document Custodian, the
Collateral Administrator and the Collateral Agent) (a “Collateral Manager Termination Notice”),
may terminate all of the rights and obligations of the Collateral Manager as Collateral Manager
under this Agreement in accordance with Section 11.08.
ARTICLE VII
PLEDGE OF COLLATERAL; RIGHTS OF THE COLLATERAL AGENT
Section 7.01.
Grant of Security. (a) The Borrower hereby grants, pledges, transfers and
collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties, as collateral
security for all Obligations, a continuing security interest in, and a Lien upon, all of the Borrower’s
right, title and interest in, to and under, the following property, in each case whether tangible or
intangible, wheresoever located, and whether now owned by the Borrower or hereafter acquired
and whether now existing or hereafter coming into existence (all of the property described in this
Section 7.01(a) being collectively referred to herein as the “Collateral”):
(i)
all Collateral Loans and Related Documents (including those listed, as of
the Closing Date, in Schedule 3), both now and hereafter owned, including all Collections
and other Proceeds thereon or with respect thereto;
(ii)
each Covered Account and all Money and all investment property
(including all securities, all security entitlements with respect to such Covered Account
and all financial assets carried in such Covered Account) from time to time on deposit in
or credited to each Covered Account;
(iii)
all interest, dividends, stock dividends, stock splits, distributions and other
Money or property of any kind distributed in respect of the Collateral Loans of the
Borrower, which the Borrower is entitled to receive, including all Collections in respect of
its Collateral Loans;
(iv) each Facility Document and all rights, remedies, powers, privileges and
claims under or in respect thereto (whether arising pursuant to the terms thereof or
otherwise available to the Borrower at law or equity), including the right to enforce each
such Facility Document and to give or withhold any and all consents, requests, notices,
directions, approvals, extensions or waivers under or with respect thereto, to the same
extent as the Borrower could but for the assignment and security interest granted to the
Collateral Agent under this Agreement;
(v)
all Cash or Money in possession of the Borrower or delivered to the
Collateral Agent (or its bailee);
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(vi)
all securities, loans, investments, accounts, chattel paper, deposit accounts,
financial assets, general intangibles, instruments, investment property, letter-of-credit
rights and supporting obligations of the Borrower;
(vii)
all other property of any type or nature in which the Borrower has an
interest (including the equity interests of each subsidiary of the Borrower) and all property
of the Borrower which is delivered to the Collateral Agent (or the Custodian or Document
Custodian on its behalf) by or on behalf of the Borrower (whether or not constituting
Collateral Loans or Eligible Investments);
(viii)
all Liens, collateral, property, guaranties, supporting obligations, insurance
and other agreements or arrangements of whatever character from time to time supporting
or securing payment of the assets, investments and properties described above; and
(ix)
all Proceeds of any and all of the foregoing.
(b)
All terms used in this Section 7.01 that are defined in the UCC but are not defined
in Section 1.01 shall have the respective meanings assigned to such terms in the UCC.
(c)
The Borrower confirms that, upon the occurrence and during the continuance of
an Event of Default and until the Collection Date, the Collateral Agent (at the written direction of
the Administrative Agent a copy of which direction shall also be provided to the Borrower to the
extent delivery thereof to the Borrower is not prohibited by Applicable Law) on behalf of the
Secured Parties shall have the sole right to enforce the Borrower’s rights and remedies under the
Purchase and Contribution Agreement and any UCC financing statements filed under or in
connection therewith for the benefit of the Secured Parties.
Section 7.03.
Rights and Remedies. The Collateral Agent (for itself and on behalf of the
other Secured Parties) shall have all of the rights and remedies of a secured party under the UCC
and other Applicable Law. Upon the occurrence and during the continuance of an Event of
Default, the Collateral Agent or its designees shall, at and in accordance with the written direction
of the Administrative Agent or the Required Lenders acting through the Administrative
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Section 7.02. Release of Security Interest. Upon the Collection Date or pursuant to
Section 8.07, the Collateral Agent, on behalf of the Secured Parties, shall, at the expense of the
Borrower, promptly execute, deliver and file or authorize for filing such instruments as the
Borrower shall prepare and reasonably request in order to reassign, release or terminate the
Secured Parties’ security interest in the Collateral. The Secured Parties acknowledge and agree
that upon the sale or disposition of any Collateral by the Borrower in compliance with the terms
and conditions of this Agreement, the security interest of the Secured Parties in such Collateral
shall immediately terminate and the Borrower shall provide notice thereof to the Collateral Agent
and the Administrative Agent and the Collateral Agent, on behalf of the Secured Parties, shall, at
the expense of the Borrower, execute, deliver and file or authorize for filing such instrument as
the Borrower shall prepare and reasonably request to reflect or evidence such termination. Any
and all actions under this Article VII in respect of the Collateral shall be without any recourse to,
or representation or warranty by any Secured Party and shall be at the sole cost and expense of
the Borrower.
Agent, (i) instruct the Borrower to deliver any or all of the Collateral, the Related Documents and
any other documents relating to the Collateral to the Collateral Agent or its designees and
otherwise give all instructions for the Borrower regarding the Collateral; (ii) sell or otherwise
dispose of the Collateral in a commercially reasonable manner, all without judicial process or
proceedings; (iii) take control of the Proceeds of any such Collateral; (iv) subject to the provisions
of the applicable Related Documents, exercise any consensual or voting rights in respect of the
Collateral; (v) release, make extensions, discharges, exchanges or substitutions for, or surrender
all or any part of the Collateral; (vi) enforce the Borrower’s rights and remedies with respect to
the Collateral; (vii) institute and prosecute legal and equitable proceedings to enforce collection
of, or realize upon, any of the Collateral; (viii) require that the Borrower immediately take all
actions necessary to cause the liquidation of the Collateral in order to pay all amounts due and
payable in respect of the Obligations, in accordance with the terms of the Related Documents; (ix)
redeem or withdraw or cause the Borrower to redeem or withdraw any asset of the Borrower to
pay amounts due and payable in respect of the Obligations; (x) make copies of or, if necessary,
remove from the Borrower’s, the Collateral Manager’s and their respective agents’ place of
business all books, records and documents relating to the Collateral; and (xi) endorse the name of
the Borrower upon any items of payment relating to the Collateral or upon any proof of claim in
bankruptcy against an account debtor. In the absence of written direction of the Administrative
Agent or the Required Lenders (acting through the Administrative Agent), the Collateral Agent
shall not be required to take any action. In the absence of its gross negligence or willful
misconduct, the Collateral Agent shall not be liable to the Administrative Agent, the Required
Lenders or any other party for any action taken or omitted to be taken at the direction of the
Administrative Agent or the Required Lenders (acting through the Administrative Agent) or any
inactions in the absence thereof. To the extent permitted by applicable law, each of the Borrower
and the Collateral Manager waive all claims, damages and demands it may have against the
Collateral Agent and the Secured Parties arising out of the exercise by the Collateral Agent of any
of their rights hereunder, except for any claims, damages and demands it may have against the
Collateral Agent arising from the bath faith, willful misconduct or gross negligence of the
Collateral Agent.
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The Borrower hereby agrees that, upon the occurrence and during the continuance of an
Event of Default, at the request of either the Administrative Agent or the Required Lenders (acting
through the Administrative Agent), it shall execute all documents and agreements which are
necessary or appropriate to have the Collateral to be assigned to the Collateral Agent or its
designee. For purposes of taking the actions described in clauses (i) through (xi) of this Section
7.03 the Borrower hereby irrevocably appoints the Collateral Agent as its attorney-in-fact (which
appointment being coupled with an interest and is irrevocable while any of the Obligations remain
unpaid, with power of substitution), in the name of the Collateral Agent or in the name of the
Borrower or otherwise, for the use and benefit of the Collateral Agent (for the benefit of the
Secured Parties), but at the cost and expense of the Borrower and, except as expressly required by
Applicable Law, without notice to the Borrower. Such appointment shall in no way impose upon
the Collateral Agent any obligation to take any such action unless specifically directed to do so
by the Administrative Agent or the Required Lenders in accordance with this Agreement. The
Collateral Agent shall not be deemed to assume any obligations of the Borrower as a result of the
foregoing power of attorney and shall have no obligation to the Borrower to exercise any
such rights thereunder except as otherwise directed by the Administrative Agent or the Required
Lenders (acting through the Administrative Agent).
All sums paid or advanced by the Collateral Agent in connection with the foregoing and
all out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and
expenses) incurred in connection therewith, together with interest thereon at the Past Due Rate
from the date of payment until repaid in full, shall be paid by the Borrower to the Collateral Agent
from time to time on demand in accordance with the Priority of Payments and shall constitute and
become a part of the Obligations secured hereby.
Section 7.04.
Remedies Cumulative. Each right, power, and remedy of the Agents and
the other Secured Parties, or any of them, as provided for in this Agreement or in the other Facility
Documents or now or hereafter existing at law or in equity or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power, or remedy provided
for in this Agreement or in the other Facility Documents or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise by either of the
Agents or any other Secured Party of any one or more of such rights, powers, or remedies shall
not preclude the simultaneous or later exercise by such Persons of any or all such other rights,
powers, or remedies.
Section 7.05.
Related Documents.(a) Each of the Borrower and the Collateral
Manager hereby agrees that, to the extent not expressly prohibited by the terms of the Related
(b) The Borrower agrees that, to the extent the same shall be in the Borrower’s possession,
it will hold all Related Documents relating to the Collateral in trust for the Collateral Agent on
behalf of the Secured Parties, and upon request of the Administrative Agent following the
occurrence and during the continuance of an Event of Default or as otherwise provided herein,
promptly deliver the same to the Collateral Agent or its designee (including the Custodian). In
addition, in accordance with Article XIII, promptly (and in any event, within five
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Notwithstanding anything in this Section 7.03 to the contrary, the Collateral Agent shall
be under no duty or obligation to take any affirmative action to exercise or enforce any power,
right or remedy available to it under this Agreement unless and to the extent expressly so directed
by the Administrative Agent, the Required Lenders or the Majority Lenders, as applicable;
provided that the Collateral Agent shall not be required to take any action hereunder at the
direction of the Administrative Agent or any Secured Party if such action would, in the reasonable
determination of the Collateral Agent (x) be in violation of or contrary to Applicable Law or any
provisions of this Agreement or other Facility Document or (y) expose the Collateral Agent to
liability unless it has received reasonably satisfactory indemnity with respect thereto.
Documents, after the occurrence and during the continuance of an Event of Default, it shall (i)
upon the written request of the Administrative Agent, promptly forward to such Person all
material information and notices which it receives under or in connection with the Related
Documents relating to the Collateral, (ii) upon the written request of the Administrative Agent,
promptly forward to the Administrative Agent any reasonably requested information relating to
the specified Collateral Loans and (iii) act and refrain from acting in respect of any request, act,
decision or vote under or in connection with the Related Documents relating to the Collateral only
in accordance with the direction of the Administrative Agent.
(5) Business Days) following its acquisition of any Collateral Loan the Borrower shall deliver to
the Collateral Agent, the Collateral Administrator and the Administrative Agent, to the extent
applicable, electronic copies of the Related Documents.
Section 7.06. Borrower Remains Liable. (a) Notwithstanding anything herein to the
contrary, (i) the Borrower shall remain liable under the contracts and agreements included in and
relating to the Collateral (including the Related Documents) to the extent set forth therein, and
shall perform all of its duties and obligations under such contracts and agreements to the same
extent as if this Agreement had not been executed, and (ii) the exercise by any Secured Party of
any of its rights hereunder shall not release the Borrower from any of its duties or obligations
under any such contracts or agreements included in the Collateral.
(b)
No obligation or liability of the Borrower is intended to be assumed by the
Administrative Agent or any other Secured Party under or as a result of this Agreement or the
other Facility Documents, or the transactions contemplated hereby or thereby, including under
any Related Document or any other agreement or document that relates to Collateral and, to the
maximum extent permitted under provisions of Law, the Administrative Agent and the other
Secured Parties expressly disclaim any such assumption.
Section 7.07.
Protection of Collateral. The Borrower shall from time to time execute
and deliver all such supplements and amendments hereto and file or authorize the filing of all
such UCC-1 financing statements and continuation statements and the equivalent thereof in any
applicable foreign jurisdiction, if applicable, instruments of further assurance and other
instruments, and shall take such other action as may be necessary or advisable or desirable to
secure the rights and remedies of the Secured Parties hereunder and to:
(i)
grant security more effectively on all or any portion of the Collateral;
(ii)
maintain, preserve and perfect any grant of security made or to be made by
this Agreement including the first priority nature of the Lien granted hereunder or to carry
out more effectively the purposes hereof;
(iii)
perfect, publish notice of or protect the validity of any grant made or to be
made by this Agreement (including any and all actions necessary or desirable as a result
of changes in Law);
(iv)
the Collateral;
enforce any of the Collateral or other instruments or property included in
(v)
preserve and defend title to the Collateral and the rights therein of the
Collateral Agent and the Secured Parties in the Collateral against the claims of all third
parties; and
(vi)
pay or cause to be paid any and all Taxes levied or assessed upon all or any
part of the Collateral.
The Borrower hereby designates the Collateral Agent as its agent and attorney in fact to
prepare and file any UCC-1 financing statement and continuation statement and the equivalent
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thereof in any applicable foreign jurisdiction, if applicable, and all other instruments, and take all
other actions, required pursuant to this Section 7.07. Such designation shall not impose upon the
Collateral Agent or the Administrative Agent or any other Secured Party, or release or diminish,
the Borrower’s obligations under this Section 7.07 or Section 5.01(c). The Borrower further
authorizes the Administrative Agent to file, without the Borrower’s signature, UCC-1 financing
statements or the equivalent thereof in any foreign jurisdiction, if applicable, that name the
Borrower as debtor and the Collateral Agent as secured party and that describes “all assets in
which the debtor now or hereafter has rights” as the Collateral in which the Collateral Agent has
a grant of security hereunder and any amendments or continuation statements that may be
necessary or desirable.
ARTICLE VIII
ACCOUNTS, ACCOUNTINGS AND RELEASES
Section 8.01.
Collection of Money. Except as otherwise expressly provided herein, the
Collateral Agent shall, at the direction of the Administrative Agent, demand payment or delivery
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of, and shall collect, directly and without intervention or assistance of any fiscal agent or other
intermediary, all Money and other property payable to or receivable by the Collateral Agent
pursuant to this Agreement, including all payments due on the Collateral, in accordance with the
terms and conditions of such Collateral. The Collateral Agent shall segregate and hold all such
Money and property received by it in trust for the Secured Parties and shall apply it as provided
in this Agreement. Each Covered Account shall be established and maintained under the Account
Control Agreement with a Qualified Institution. Any Covered Account may contain any number
of component accounts for the convenience of the Collateral Agent or as required by the Collateral
Manager for convenience in administering the Covered Account or the Collateral.
Section 8.02. Collection Account. (a) In accordance with this Agreement and the Account
Control Agreement, the Borrower shall, on or prior to the ClosingResignation Effective Date,
establish at the Custodian the “Collection Account”, the “Interest Collection Account”, and the
“Principal Collection Account”, each of which shall be maintained with the Custodian in
accordance with the Account Control Agreement, whichand shall be subject to the Lien of the
Collateral Agent and which shall consist of two segregated accounts, one of which will be
designated the “Interest Collection Account” and one of which will be designated the “Principal
Collection Account”. The Collateral Agent shall from time to time deposit into the Interest
Collection Account or the Principal Collection Account, in addition to the deposits required
pursuant to Section 8.05(a), immediately upon receipt thereof all Interest Proceeds received by the
Collateral Agent. The Collateral Agent shall deposit immediately upon receipt thereof all other
amounts remitted to the Collection Account into the Principal Collection Account including, in
addition to the deposits required pursuant to Section 8.05(a), all Principal Proceeds (unless
simultaneously reinvested in additional Collateral Loans in accordance with Article X or in
Eligible Investments or required to be deposited in the Revolving Reserve Account pursuant to
Section 8.04) received by the Collateral Agent. If all Interest Proceeds and Principal Proceeds are
held by the Collateral Agent in one of the segregated Collection Accounts, then the Collateral
Agent may record the Principal Proceeds and Interest Proceeds in the Collateral Agent’s cash flow
report provided to the Collateral Manager pursuant to Section 8.05 as though such Principal
Proceeds and Interest Proceeds were segregated. All Monies deposited from time to time in the
Collection Account pursuant to this Agreement shall be held by the Collateral Agent as part of
the Collateral and shall be applied to the purposes herein provided. Subject to Section 8.02(c),
amounts in the Collection Account shall be reinvested pursuant to Section 8.05(a).
(b)
At any time when reinvestment is permitted pursuant to Article X, the Collateral
Manager on behalf of the Borrower (subject to compliance with Article X) may, by delivery of a
(c)
The Collateral Agent shall transfer to the Payment Account, from the Collection
Account for application pursuant to Section 9.01(a), on the Business Day prior to each Payment
Date, the amount set forth to be so transferred in the Monthly Report for such Payment Date.
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certificate or an email (of a .pdf or other similar file) instruction of a Responsible Officer of the
Collateral Manager or a Trade Ticket, direct the Collateral Agent (with a copy to the Collateral
Administrator) to, and upon receipt of such certificate, email or Trade Ticket, as applicable (which
such certificate, Trade Ticket or email shall be deemed to be a certification of the Collateral
Manager that the applicable reinvestment is authorized and permitted by the Facility Documents
and all conditions precedent to such reinvestment have been satisfied), the Collateral Agent shall,
withdraw funds on deposit in the Principal Collection Account representing Principal Proceeds
(together with accrued interest received with regard to any Collateral Loan and Interest Proceeds
but only to the extent used to pay for accrued interest on an additional Collateral Loan) and
reinvest such funds in additional Collateral Loans in accordance with such certificate, email or
Trade Ticket. At any time as of which sufficient funds are not on deposit in the Revolving Reserve
Account, the Collateral Manager on behalf of the Borrower may, by delivery of a certificate of a
Responsible Officer of the Collateral Manager, direct the Collateral Agent (with a copy to the
Collateral Administrator) to, and upon receipt of such certificate the Collateral Agent shall,
withdraw funds on deposit in the Principal Collection Account representing Principal Proceeds
and remit such funds as so directed by the Collateral Manager to meet the Borrower’s funding
obligations in respect of Delayed Drawdown Collateral Loans or Revolving Collateral Loans. In
addition, in connection with any prepayment of Advances under Section 2.05(a), the Collateral
Manager on behalf of the Borrower may, by delivery of a certificate of a Responsible Officer of
the Collateral Manager to the Collateral Agent and the Collateral Administrator, direct the
Collateral Agent to, and upon receipt of such certificate the Collateral Agent shall, withdraw funds
on deposit in the Principal Collection Account representing Principal Proceeds and remit such
funds as so directed by the Collateral Manager to the Lenders in connection with such prepayment.
Section 8.03. Transaction Accounts. (a) Payment Account. In accordance with this
Agreement and the Account Control Agreement, the Borrower shall, on or prior to the Closing
Date, establish at the Custodian a single, segregated non-interest bearing trust account in the name
“MSCC Funding I, LLC Payment Account, subject to the lien of the Collateral Agent”, which
shall be designated as the “Payment Account”, which shall be maintained by the Borrower with
the Custodian in accordance with the Account Control Agreement and which shall be subject to
the Lien of the Collateral Agent. Except as provided in Section 9.01, the only permitted
withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Payment
Account shall be to pay amounts due and payable under the Priority of Payments on the Payment
Dates in accordance with their terms and the provisions of this Agreement. The Borrower shall
not have any legal, equitable or beneficial interest in the Payment Account other
than in accordance with this Agreement and the Priority of Payments. For the avoidance of
doubt, the Payment Account shall remain uninvested.
(b)
Custodial Account. In accordance with this Agreement and the Account Control
Agreement, the Borrower shall, on or prior to the Closing Date, establish at the Custodian a single,
segregated non-interest bearing trust account in the name “MSCC Funding I, LLC Custodial
Account, subject to the lien of the Collateral Agent”, which shall be designated as the “Custodial
Account”, which shall be maintained by the Borrower with the Custodian in accordance with the
Account Control Agreement and which shall be subject to the Lien of the Collateral Agent. All
Collateral Loans shall be credited to the Custodial Account. For the avoidance of doubt, the
Custodial Account shall remain uninvested.
Section 8.04.
The Revolving Reserve Account; Fundings. In accordance with this
Agreement and the Account Control Agreement, the Borrower shall, on or prior to the Closing
On the Commitment Termination Date and at all times thereafter, the Borrower shall
maintain an amount (the “Revolving Reserve Required Amount”) in the Revolving Reserve
Account at least equal to the sum of (x) the Revolving Exposure, plus (y) the aggregate amount
of funds needed to settle purchases of Collateral Loans which the Borrower committed, prior to
the end of the Reinvestment Period, to acquire after the Commitment Termination Date. Prior to
or immediately after the occurrence of the Commitment Termination Date (other than a
Commitment Termination Date following the occurrence of an Insolvency Event with respect to
the Borrower, the Parent or the Collateral Manager), the Borrower shall be deemed to have
requested a final Borrowing in an amount sufficient to fund the Revolving Reserve Required
Amount.
Amounts on deposit in the Revolving Reserve Account will be invested in overnight funds
that are Eligible Investments selected by the Collateral Manager pursuant to Section 8.05
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Date, establish at the Custodian a single, segregated non-interest bearing trust account in the name
“MSCC Funding I, LLC Revolving Reserve Account, subject to the lien of the Collateral Agent”,
which shall be designated as the “Revolving Reserve Account”, which shall be maintained by the
Borrower with the Custodian in accordance with the Account Control Agreement and which shall
be subject to the Lien of the Collateral Agent. The only permitted deposits to or withdrawals from
the Revolving Reserve Account shall be in accordance with the provisions of this Agreement.
The Borrower shall not have any legal, equitable or beneficial interest in the Revolving Reserve
Account other than in accordance with this Agreement and the Priority of Payments.
During the Reinvestment Period, fundings of Delayed Drawdown Collateral Loans and
Revolving Collateral Loans shall be made using, first, amounts on deposit in the Revolving
Reserve Account, then available Principal Proceeds on deposit in the Collection Account and
finally, available Borrowings. After the Commitment Termination Date, fundings of Delayed
Drawdown Collateral Loans and Revolving Collateral Loans shall be made using, first, amounts
on deposit in the Revolving Reserve Account, then available Principal Proceeds on deposit in the
Collection Account. In addition, after the Commitment Termination Date, all Principal Proceeds
received with respect to Revolving Collateral Loans shall be deposited into the Revolving Reserve
Account to the extent such proceeds may be reborrowed by the related Obligors.
and earnings from all such investments will be deposited in the Interest Collection Account as
Interest Proceeds. Funds in the Revolving Reserve Account (other than earnings from Eligible
Investments therein) will be available solely to cover drawdowns on the Delayed Drawdown
Collateral Loans and Revolving Collateral Loans and settle purchases of Collateral Loans
committed to be acquired by the Borrower prior to the end of the Reinvestment Period; provided
that, to the extent that the aggregate amount of funds on deposit therein at any time exceeds the
Revolving Reserve Required Amount, the Borrower shall direct the Collateral Agent to and the
Collateral Agent, at the direction of the Borrower (or the Collateral Manager on its behalf), shall
remit such excess to the Principal Collection Account. In addition, following the occurrence of
an Event of Default, funds in the Revolving Reserve Account may be withdrawn by the Collateral
Agent and deposited into the Principal Collection Account pursuant to and at the direction of the
Administrative Agent.
(b)
The Collateral Agent agrees to give the Borrower prompt notice if any Covered
Account or any funds on deposit in any Covered Account, or otherwise to the credit of a Covered
Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or
similar process. All Covered Accounts shall remain at all times with the Collateral Agent.
(c)
The Collateral Administrator shall supply, in a timely fashion, to the Borrower and
the Collateral Manager any information regularly maintained by the Collateral Administrator that
the Borrower or the Collateral Manager may from time to time reasonably request with respect to
the Collateral, the Covered Accounts and the other Collateral and provide any other
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Section 8.05. Reinvestment of Funds in Covered Accounts; Reports by Collateral Agent.
(a) By delivery of a certificate of a Responsible Officer (which may be in the form of standing
instructions), the Borrower (or the Collateral Manager on behalf of the Borrower) shall at all times
direct the Collateral Agent to, and, upon receipt of such certificate, the Collateral Agent shall, in
accordance with such direction, invest all funds on deposit in the Collection Account (including
the Principal Collection Account and the Interest Collection Account) and the Revolving Reserve
Account as so directed in Eligible Investments having stated maturities no later than the Business
Day preceding the next Payment Date (or such shorter maturities expressly provided herein). If,
prior to the occurrence of an Event of Default, the Collateral Manager shall not have given any
such investment directions, the Collateral Agent shall invest and reinvest such funds as fully as
practicable in the Specified Eligible Investment (or if none has been selected, such funds shall
remain uninvested). After the occurrence and during the continuation of an Event of Default, the
Collateral Agent (as directed by the Administrative Agent) shall invest and reinvest such Monies
as fully as practicable in Specified Eligible Investments selected by the Administrative Agent in
accordance with the definition of Specified Eligible Investment (and if no Specified Eligible
Investment has been specified, such funds shall be invested in the Specified Eligible Investment
selected by the Collateral Manager or held uninvested if none has been selected). Except to the
extent expressly provided otherwise herein, all interest, gain, loss and other income from such
investments shall be deposited, credited or charged (as applicable) in and to the Interest Collection
Account. Absent its timely receipt of such instruction from the Collateral Manager in accordance
with the foregoing, the Collateral Agent shall not be under an obligation to invest (or pay interest
on) funds held hereunder. The Collateral Agent shall in no way be liable for any insufficiency in
a Covered Account resulting from any loss relating to any such investment.
requested information reasonably available to the Collateral Administrator and required to be
provided by Section 8.06 or to permit the Collateral Manager to perform its obligations hereunder
or the Borrower’s obligations hereunder that have been delegated to the Collateral Manager. The
Collateral Administrator shall promptly forward to the Collateral Manager copies of notices and
other writings received by it from the Obligor of any Collateral Loan or from any Clearing Agency
with respect to any Collateral Loan which notices or writings advise the holders of such Collateral
Loan of any rights that the holders might have with respect thereto (including requests to vote with
respect to amendments or waivers and notices of prepayments and redemptions) as well as all
periodic financial reports received from such Obligor and Clearing Agency with respect to such
Obligor.
Section 8.06.
Accountings. (a) Monthly. Not later than (i) January 20, 2023 and (ii) two
Business Days prior to the 25th day of each calendar month, beginning with February 2023 (such
date, the “Monthly Reporting Date”), the Collateral Manager shall compile and provide to the
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Agents and the Lenders, a monthly report (each, a “Monthly Report”) in accordance with this
Section 8.06. The Collateral Manager shall compile and provide to the Collateral Administrator
and the Administrative Agent a loan data file (the “Data File”) for the previous monthly period
ending on the Monthly Report Determination Date (containing such information agreed upon by
the Collateral Manager, the Collateral Administrator and the Administrative Agent). The
Collateral Manager shall provide (or cause to be provided) the Data File to the Collateral
Administrator and the Administrative Agent at least (x) four (4) Business Days prior to the January
2023 Monthly Reporting Date and (y) five (5) Business Days prior to any subsequent Monthly
Reporting Date. The Collateral Administrator shall use commercially reasonable efforts to review
and, based solely on the Data File provided by the Collateral Manager, confirm the calculations
in clauses (i) through (xii) below made by the Collateral Manager in any such Monthly Report for
such calendar month, within three (3) Business Days of the receipt thereof and shall review and
verify the Monthly Report to ensure that it is complete on its face and, based solely on the
information provided on the related Data File, that the following items in such Monthly Report
have been accurately calculated, if applicable, and reported: (i) Aggregate Collateral Balance, (ii)
Borrowing Base, (iii) Excess Concentration Amount, (iv) Maximum Available Amount, (v) Net
Aggregate Exposure Amount, (vi) each Collateral Quality Test, (vii) each Coverage Test, (viii)
the Maximum Advance Rate Default Test, (ix) Collateral Default Ratio, (x) completion of Priority
of Payments pursuant to Section 9.01(a), (xi) Interest Collection Account, Principal Collection
Account and Revolving Reserve Account balances, and (xii) other information as may be mutually
agreed upon by the Collateral Administrator, the Collateral Manager and the Administrative
Agent. Upon receipt of such confirmation (or report showing discrepancies) by the Collateral
Manager and the Administrative Agent from the Collateral Administrator, and in any event by no
later than the Monthly Reporting Date, the Collateral Manager shall compile and provide (or cause
to be compiled and provided) to the Agents and the Lenders the Monthly Report. As used herein,
the “Monthly Report Determination Date” will be the last day of the most recently completed
Collection Period. The Monthly Report for a calendar month shall contain the information with
respect to the Collateral Loans and Eligible Investments included in the Collateral set forth in
Schedule 2, and shall be determined as of the Monthly Report Determination Date for such
calendar month.
In addition, the Borrower shall provide (or cause to be provided) in each Monthly Report
a statement setting forth in reasonable detail each amendment, modification or waiver under any
Related Document for each Collateral Loan that constitutes a Material Modification that became
effective since the immediately preceding Monthly Report (or, in respect of the first Monthly
Report, from the Closing Date).
(b)
Failure to Provide Accounting. If the Collateral Agent shall not have received any
accounting provided for in this Section 8.06 on the first Business Day after the date on which such
accounting is due to the Collateral Agent, the Collateral Agent shall notify the Collateral Manager
who shall use all reasonable efforts to obtain such accounting by the applicable Monthly Reporting
Date.
(b)
Subject to the terms of this Agreement, the Collateral Agent, Document Custodian
or Custodian, as applicable, shall, upon the receipt of a certificate of a Responsible Officer of the
Collateral Manager, deliver any Collateral as instructed in such certificate, and execute such
documents or instruments as are presented by the Borrower or the Collateral Manager and are
reasonably necessary to release or cause to be released such loan from the Lien of this Agreement,
which is set for any mandatory call or redemption or payment in full to the appropriate paying
agent on or before the date set for such call, redemption or payment, in each case against receipt
of the call or redemption price or payment in full thereof.
(c)
As provided in Section 8.02(a), the Collateral Manager or the Collateral Agent
shall deposit any proceeds received by it from the disposition of any Collateral in the Interest
Collection Account or the Principal Collection Account, as applicable and as instructed by the
Collateral Manager, unless simultaneously applied to the purchase of additional Collateral Loans
or Eligible Investments as permitted under and in accordance with the requirements of this Article
VIII and Article X.
(d)
The Collateral Agent shall, upon receipt of a certificate of a Responsible Officer
of the Borrower (or the Collateral Manager on its behalf), certifying that there are no
Commitments outstanding and all Obligations of the Borrower hereunder and under the other
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Section 8.07. Release of Collateral. (a) The Lien created by this Agreement shall be
automatically released with respect to any sale of any item of Collateral in accordance with
Section 10.01. Upon receipt of a certificate of a Responsible Officer of the Collateral Manager
(on behalf of the Borrower) or a Trade Ticket, the Collateral Agent (or Custodian or Document
Custodian, as applicable) shall deliver any such item, if in physical form, duly endorsed to the
broker or purchaser designated by in such certificate or, if such item is a Clearing Corporation
Security, cause an appropriate transfer thereof to be made, in each case against receipt of the sales
price therefor as specified by the Collateral Manager in such certificate; provided that the
Collateral Agent may deliver any such item in physical form for examination in accordance with
street delivery custom. The Collateral Agent (or the Document Custodian or the Custodian, as
applicable) shall, at the sole expense of the Borrower and at the direction of the Administrative
Agent, execute such documents and instruments of release as may be prepared by the Collateral
Manager on behalf of the Borrower and take other such actions as shall reasonably be requested
by the Collateral Manager to evidence or effect such release of the Lien created pursuant to this
Agreement.
Facility Documents have been satisfied, release any remaining Collateral from the Lien of this
Agreement.
(e)
Any Collateral Loan or amounts that are released pursuant to Section 8.07(a) or
(b) shall automatically be released from the Lien of this Agreement.
Section 8.09. Covered Account Details. The account number of each Covered Account
is set forth on Schedule 6.
ARTICLE IX
APPLICATION OF MONIES
Section 9.01.
Disbursements of Monies from Payment Account.
(a)
Notwithstanding any other provision in this Agreement, but subject to the other
subsections of this Section 9.01, on each Payment Date, the Collateral Agent shall disburse
amounts transferred from the Collection Account to the Payment Account pursuant to Section
8.02 in accordance with the Monthly Report and the following priorities (the “Priority of
Payments”):
(i)
On each Payment Date prior to the occurrence and continuance of an Event
of Default, Interest Proceeds on deposit in the Interest Collection Account, to the extent
received on or before the related Determination Date (or, if such Determination Date is
not a Business Day, the next succeeding Business Day) will be transferred into the
Payment Account, to be applied in the following order of priority:
(A)
Borrower;
to pay registration, registered office and filing fees, if any, of the
(B)
(1) first, to pay all out-of-pocket costs and expenses of the
Collateral Agent incurred in connection with any sale of Collateral or exercise of
other remedial rights pursuant to Section 7.03; (2) second, to pay Administrative
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Section 8.08. Reports by Independent Accountants. The Borrower or the Collateral
Manager will cause a firm of nationally recognized independent public accountants reasonably
acceptable to the Administrative Agent (who may also render other services to the Collateral
Manager) (together with its successors, the “Independent Accountants”) to furnish to the
Administrative Agent and each Lender (a) by the six-month anniversary of the Closing Date (the
“Initial AUP Date”) and (b) annually thereafter, by each anniversary of the Initial AUP Date, in
each case, a report relating to such calendar year to the effect that (i) such firm has applied certain
agreed-upon procedures, and (ii) based on such examination, such firm is of the opinion that the
Monthly Reports for such year (or, such period of time since the Closing Date, as applicable) were
prepared in compliance with this Agreement, except for such exceptions as it believes to be
immaterial and such other exceptions as shall be set forth in such firm’s report (including with
respect to any such exceptions, an explanation of how each such exception arose and reflecting
the input/explanation of the Collateral Manager thereto). The fees of such Independent
Accountants and any successor shall be payable by the Borrower.
Expenses (in the order of priority set forth in the definition thereof); provided that
the amounts payable in this clause (2) shall not exceed the Administrative Expense
Cap; and (3) third, to pay the Collateral Agent all amounts owed pursuant to
Erroneous Payment Subrogation Rights without regard to the Administrative
Expense Cap;
(C)
to the Administrative Agent to pay all fees and expenses of the
Administrative Agent under the Facility Documents and all amounts owed
pursuant to Erroneous Payment Subrogation Rights;
(D)
(1) first, to the Collateral Manager to pay the Senior Collateral
Management Fee, plus any Senior Collateral Management Fee that remains due
and unpaid in respect of any prior Payment Dates as a result of insufficient funds
and (2) second, to pay Collateral Manager Expenses, provided that the amounts in
this clause (2) shall not exceed the Collateral Manager Expense Cap;
(E) to each Lender (including the Swingline Lender), pro rata, based
on amounts owed, to pay accrued and unpaid Interest on the Advances and
Commitment Fees due to each such Lender and amounts payable to each such
Lender under Section 2.10;
(F)
(i) if any of the Coverage Tests are not satisfied as of the related
Determination Date, to pay the principal of the Advances of each Lender (pro rata,
based on each Lender’s Percentage) until the Coverage Tests are satisfied (on a
pro forma basis as at such Determination Date) and (ii) if each of the Coverage
Tests are satisfied as of the related Determination Date, to make any required
Permitted RIC Distributions that are solely based on the income of the Borrower;
(G)
(i) during the Reinvestment Period, at the discretion of the
Collateral Manager, for deposit into the Revolving Reserve Account until the
amount on deposit therein equals the Revolving Reserve Required Amount (as if
such amount was in effect prior to the end of the Reinvestment Period) and (ii)
after the Reinvestment Period, for deposit into the Revolving Reserve Account
until the amount on deposit therein equals the Revolving Reserve Required
Amount;
(H)
to pay, on a pro rata basis, accrued and unpaid amounts owing to
Affected Persons (if any) under Sections 2.09 and 16.04, all other fees, expenses
or indemnities owed to the Secured Parties or Indemnified Parties;
(I)
(1) first, to the payment or application of amounts referred to in
clause (B) above (in the same order of priority specified therein), to the extent not
paid in full pursuant to applications under such clause, (2) second, to the payment
or application of amounts referred to in clause (C) above to the extent not paid in
full pursuant to such clause, and (3) third, to the payment or application of
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amounts referred to in clause (D)(2) above to the extent not paid in full pursuant
to such clause;
(J)
to the Collateral Manager to pay the accrued and unpaid
Subordinated Collateral Management Fee that remains due and payable, and any
Subordinated Collateral Management Fee that remains due and unpaid in respect
of any prior Payment Dates; and
(K)
any remaining amounts shall, at the discretion of the Borrower, (i)
be released to the Borrower or its designee, (ii) remain in the Interest Collection
Account or (iii) be transferred to the Principal Collection Account.
(ii) On each Payment Date prior to the occurrence and continuance of an Event
of Default, except for any Principal Proceeds that will be used to settle binding
commitments entered into prior to the related Determination Date for the purchase of
Collateral Loans, Principal Proceeds on deposit in the Principal Collection Account that
are received on or before the related Determination Date (or, if such Determination Date
is not a Business Day, the next succeeding Business Day) will be transferred to the
Payment Account to be applied in the following order of priority:
(A)
to the payment of unpaid amounts under clauses (A) through (F) in
clause (i) above (in the same order of priority specified therein), to the extent not
paid in full thereunder;
(B)
at the discretion of the Collateral Manager, all remaining amounts
shall be allocated to any one or more of the following payments: (1) during the
Reinvestment Period, to the Principal Collection Account for the purchase of
additional Collateral Loans (including funding Revolving Collateral Loans and
Delayed Drawdown Collateral Loans), (2) during the Reinvestment Period, to
prepay the Advances, (3) for deposit into the Revolving Reserve Account until the
amount on deposit therein equals the Revolving Reserve Required Amount, and/or
(4) during the Reinvestment Period, if each Collateral Quality Test and Coverage
Test is satisfied and no Event of Default or Default has occurred (and has not been
waived), to the Borrower or its designee;
(C)
after the Reinvestment Period, to pay the Advances of each Lender
(including the Swingline Lender) (pro rata, based on each Lender’s Percentage)
until the Advances are paid in full;
(D)
to the payment of amounts referred to in clauses (H), (I) and (J) of
clause (i) above (in the same order of priority specified therein), to the extent not
paid in full thereunder; provided, that if the amount on deposit in the Revolving
Reserve Account equals or exceeds the amount of the outstanding Advances, the
Borrower (or the Collateral Manager on its behalf) may elect to withdraw such
amounts from the Revolving Reserve Account and repay the Advances in full; and
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(E)
any remaining amounts shall, at the discretion of the Borrower, (i)
be released to the Borrower or its designee or (ii) remain in the Principal Collection
Account.
(iii)
On each Payment Date following the occurrence and continuance of an
Event of Default, all Interest Proceeds in the Interest Collection Account and all Principal
Proceeds in the Principal Collection Account, except for any Principal Proceeds that will
be used to settle binding commitments entered into prior to the related Determination Date
for the purchase of Collateral Loans, in each case, to the extent received on or before the
related Determination Date (or, if such Determination Date is not a Business Day, the next
succeeding Business Day) will be transferred to the Payment Account to be applied in the
following order of priority:
(A)
Borrower;
to pay registration, registered office and filing fees, if any, of the
(B)
(1) first, to pay all out-of-pocket costs and expenses of the
Collateral Agent incurred in connection with any sale of Collateral or exercise of
other remedial rights pursuant to Section 7.03 (including the appointment of a
Successor Collateral Manager) and all amounts owed pursuant to Erroneous
Payment Subrogation Rights; (2) second, to pay Administrative Expenses as
provided in Section 9.01(a)(i)(B) and without regard to the Administrative
Expense Cap and (3) third, to the Administrative Agent to pay all fees and
expenses of the Administrative Agent under the Facility Documents and all
amounts owed pursuant to Erroneous Payment Subrogation Rights;
(C)
(1) first, to the Collateral Manager to pay the Senior Collateral
Management Fee, plus any Senior Collateral Management Fee that remains due
and unpaid in respect of any prior Payment Dates as a result of insufficient funds
and (2) second, to pay Collateral Manager Expenses in accordance with the
priorities specified in the definition thereof, provided that the amounts in this
clause (2) shall not exceed the Collateral Manager Expense Cap;
(D) to each Lender (including the Swingline Lender), pro rata, based
on amounts owed, to pay accrued and unpaid Interest on the Advances and
Commitment Fees due to each such Lender and amounts payable to each such
Lender under Section 2.10;
(E)
to pay the principal of the Advances, first, of the Swingline Lender,
and second, of each other Lender (pro rata, based on each Lender’s Percentage)
until paid in full;
(F)
to pay, on a pro rata basis, accrued and unpaid amounts owing to
Affected Persons (if any) under Sections 2.09 and 16.04, all other fees, expenses
or indemnities owed to the Secured Parties or Indemnified Parties;
(G)
(1) first, to the Collateral Manager to pay the accrued and unpaid
Subordinated Collateral Management Fees that remain due and unpaid and any
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Subordinated Collateral Management Fees that remain due and unpaid in respect
of any prior Payment Dates and (2) second, to the payment of amounts referred to
in clause (C)(2) above to the extent not paid in full pursuant to such clause; and
(H)
designee.
any remaining amount shall be released to the Borrower or its
(b)
If on any Payment Date the amount available in the Payment Account is
insufficient to make the full amount of the disbursements required by the Monthly Report, the
Collateral Agent shall make the disbursements called for in the order and according to the priority
set forth under Section 9.01(a) to the extent funds are available therefor.
(c)
The Collateral Manager may, in its sole discretion, elect to irrevocably waive
payment of any or all of any Collateral Management Fees otherwise due on any Payment Date by
notice to the Borrower and the Collateral Agent (with a copy to the Collateral Administrator) no
later than one (1) Business Day prior to such Payment Date. Any such Collateral Management
Fee, once waived, shall not thereafter become due and payable and any claim of the Collateral
Manager therein shall be extinguished.
ARTICLE X
SALE OF COLLATERAL LOANS; PURCHASE OF
ADDITIONAL COLLATERAL LOANS
Section 10.01.Sales of Collateral Loans. (a) Discretionary Sales of Collateral Loans.
Subject to the satisfaction of the conditions specified in Section 10.04, the Collateral Manager on
behalf of the Borrower may, but will not be required to, direct the Collateral Agent to sell (and
the Collateral Agent shall sell in the manner directed by the Collateral Manager) any Collateral
Loan if such sale meets the requirements set forth below (as shown in the Borrowing Base
Calculation Statement delivered with respect thereto in accordance with Section 5.03(e)(iii)) and
after giving effect to such sale and all other sales or purchases previously or simultaneously
committed to:
(i)
no Default or Event of Default is continuing or would result upon giving
effect thereto (unless, if a Default exists at the time of sale (but no Event of Default exists),
such Default will be cured upon giving effect to such sale and all other sales or purchases
previously or simultaneously committed to and the application of the proceeds thereof);
(ii)
upon giving effect thereto and the application of the proceeds thereof, the
Maximum Advance Rate Test is satisfied;
(iii)
upon giving effect thereto and the application of the proceeds thereof (or,
with respect to the Interest Coverage Ratio Test, as of the most recent Monthly Reporting
Date), the Interest Coverage Ratio Test is satisfied and each Collateral Quality Test is
satisfied or, if such Collateral Quality Test is not satisfied, either the compliance with any
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such test is maintained or improved or the Administrative Agent has consented to such
sale in its sole discretion;
(iv)
such sale is made for Cash and such proceeds are deposited into the
Collection Account; and
(v)
in the reasonable judgment of the Collateral Manager, there is no material
adverse selection of such Collateral Loans (as evidenced by a pro forma compliance,
maintenance or improvement of the Borrowing Base); provided that the restriction in this
clause (v) shall not apply to sales of Defaulted Collateral Loans or Ineligible Collateral
Loans.
(b)
Sales of Equity Securities. The Borrower may sell any Equity Security at any time
without restriction, and shall use its commercially reasonable efforts to effect the sale of any
Equity Security, regardless of price within forty-five days of receipt if such Equity Security
constitutes Margin Stock, unless such sale is prohibited by Applicable Law or contract, in which
case such Equity Security should be sold as soon as such sale is permitted by Applicable Law or
contract.
(c)
Repurchase or Substitution of Ineligible Collateral Loans.Notwithstanding
Section 10.01(a), if on any day a Collateral Loan is required to be repurchased (or a replacement
Collateral Loan is to be substituted for such ineligible Collateral Loan pursuant to Section 6.1 of
the Purchase and Contribution Agreement), the Borrower shall either make a deposit of the funds
Section 10.02. Purchase of Additional Collateral Loans. On any date during the
Reinvestment Period, if no Event of Default has occurred and is continuing, the Collateral
Manager on behalf of the Borrower may, if each of the conditions specified in this Section 10.02
and Section 10.04 are met, invest Principal Proceeds (and accrued interest received with respect
to any Collateral Loan to the extent used to pay for accrued interest on additional Collateral
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Notwithstanding anything above that would otherwise prohibit the sale of a Collateral
Loan after the occurrence or during the continuance of a Default or an Event of Default, if the
Borrower entered into an agreement to sell any such Collateral Loan prior to the occurrence of
such Default or an Event of Default, but such sale did not settle prior to the occurrence of such
Default or an Event of Default, then the Borrower shall be permitted to consummate such sale
notwithstanding the occurrence of such Default or an Event of Default, provided that such sale
was not entered into in contemplation of the occurrence of such Default or Event of Default and
such settlement occurs within the customary settlement period for similar trades.
received by the Borrower from the Parent pursuant to the Purchase and Contribution Agreement
or accept the replacement Collateral Loan from the Parent in substitution for such ineligible
Collateral Loan in accordance with Section 10.03. Upon confirmation of the deposit of the amount
described above into the Collection Account or the delivery to the Borrower of the replacement
Collateral Loan, such ineligible Collateral Loan shall be removed from the Collateral and the
Collateral Agent, for the benefit of the Secured Parties, shall automatically and without further
action be deemed to release to the Borrower, without recourse, representation or warranty, all the
right, title and interest and any Lien of the Collateral Agent, for the benefit of the Secured Parties
in, to and under such ineligible Collateral Loan.
Loans) in additional Collateral Loans, provided, that no Collateral Loan may be purchased unless
each of the following conditions are satisfied as of the date the Collateral Manager commits on
behalf of the Borrower to make such purchase and after giving effect to such purchase and all
other sales or purchases previously or simultaneously committed to:
(i)
such obligation is an Eligible Collateral Loan;
(ii)
each Collateral Quality Test is satisfied (or, if not satisfied immediately
prior to such investment, compliance with such Collateral Quality Test is maintained or
improved); and
(iii)
each Coverage Test is satisfied (or, in the case of the Interest Coverage
Ratio Test, was satisfied as of the most recent Monthly Reporting Date).
Section 10.03. Substitution and Transfer of Loans. (a) Substitutions. The Borrower may
(including in connection with any retransfer of a Collateral Loan to the Parent under the Purchase
and Contribution Agreement) replace any Collateral Loan with another Collateral Loan (a
“Substitute Loan”), subject to the satisfaction of the conditions set forth in clause (b) below and
in Section 10.04; provided that, at any time after the Reinvestment Period, such substitution will
require the consent of the Administrative Agent in its sole discretion.
(b) Conditions to Substitution. No substitution of a Collateral Loan with a Substitute
Loan shall occur unless each of the following conditions is satisfied as of the date of such
substitution (as certified to the Agents by the Borrower (or the Collateral Manager on behalf of
the Borrower)):
(i)
substitution;
each Substitute Loan is an Eligible Collateral Loan on the date of
(ii)
after giving effect to any such substitution, each Coverage Test and each
Collateral Quality Test is satisfied (or, if such Collateral Quality Test is not satisfied
immediately prior to such investment, compliance with such Collateral Quality Test is
maintained or improved);
(iii) the sum of the Principal Balances of such Substitute Loans shall be equal
to or greater than the sum of the Principal Balances of the Collateral Loans being
substituted for;
(iv)
no Default or Event of Default has occurred and is continuing (before or
after giving effect to such substitution unless, in the case of such a Default, such Default
will be cured upon giving effect to such sale and the application of the proceeds thereof);
(v)
the Collateral Manager acting on behalf of the Borrower shall notify the
Administrative Agent of any amount to be deposited into the Collection Account in
connection with any such substitution and shall deliver to the Document Custodian the
Related Documents for any Substitute Loan in accordance with Article XIII;
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(vi)
upon confirmation of the delivery of a Substitute Loan for each applicable
Collateral Loan being substituted for (the date of such confirmation or delivery, the
“Retransfer Date”), each applicable Collateral Loan being substituted for shall be
(vii)
the Borrower shall deliver to the Administrative Agent on the date of such
substitution a certificate of a Responsible Officer certifying that each of the foregoing is
true and correct as of such date.
Section 10.04.Conditions
Transactions.
Applicable
toAllSale,Substitution
andPurchase
(a)
Any transaction effected under this Article X (other than sales or substitutions
required by Section 10.01(c)) or in connection with the acquisition of additional Collateral Loans
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removed from the Collateral and the applicable Substitute Loan(s) shall be included in the
Collateral. On the Retransfer Date of a Collateral Loan, the Collateral Agent, for the
benefit of the Secured Parties, shall automatically and without further action be deemed
to release and transfer to the Borrower, without recourse, representation or warranty, all
the right, title and interest of the Collateral Agent, for the benefit of the Secured Parties,
in, to and under such Collateral Loan being substituted for. The Collateral Agent, for the
benefit of the Secured Parties, shall, at the sole expense of the Borrower, execute such
documents and instruments of transfer as may be prepared by the Collateral Manager, on
behalf of the Borrower, and take other such actions as shall reasonably be requested by
the Borrower to effect the release and transfer of such Collateral Loan pursuant to this
Section 10.03; and
shall be for fair market value and, if effected with a Person that is an Affiliate of the Collateral
Manager (or with an account or portfolio for which the Collateral Manager or any of its Affiliates
serves as investment adviser), shall be (i) on terms no less favorable to the Borrower than would
be the case if such Person were not such an Affiliate or as otherwise expressly permitted in this
Agreement, (ii) effected in accordance with all Applicable Laws, (iii) during the 12-month period
most recently ended prior to the relevant date of determination (or such lesser number of months
as shall have elapsed since the Closing Date), and after giving pro forma effect to such transaction,
the value of Collateral Loans substituted or sold by the Borrower to Affiliates of the Collateral
Manager may not exceed 25% of the highest Aggregate Principal Balance of Collateral Loans of
the Borrower during such 12-month period (or such higher percentage as agreed to by the
Administrative Agent); provided that of such 25% limitation, the Borrower may only substitute
Parent Collateral Loans or sell Parent Collateral Loans to the Parent (excluding Collateral Loan
repurchased or substituted pursuant to Section 6.1 of the Purchase and Contribution Agreement)
if the aggregate of such sales and substitutions does not exceed 20% of Parent Collateral Loan
Balance and (iv) during the 12-month period most recently ended prior to the relevant date of
determination (or such lesser number of months as shall have elapsed since the Closing Date), and
after giving pro forma effect to such transaction, the value of Defaulted Collateral Loans or
distressed Collateral Loans (excluding Collateral Loan repurchased or substituted pursuant to
Section 6.1 of the Purchase and Contribution Agreement) substituted or sold by the Borrower to
Affiliates of the Collateral Manager may not exceed 10% of the highest Aggregate Principal
Balance of Collateral Loans of the Borrower during such 12-month period; provided that of
such 10% limitation, the Borrower may only substitute Parent Collateral Loans or sell Parent
Collateral Loans to the Parent (excluding Collateral Loan
repurchased or substituted pursuant to Section 6.1 of the Purchase and Contribution Agreement)
if the aggregate of such sales and substitutions does not exceed 10% of Parent Collateral Loan
Balance.
(b)
Upon each acquisition by the Borrower of a Collateral Loan (i) all of the
Borrower’s right, title and interest to such Collateral Loan shall be subject to the Lien granted to
the Collateral Agent pursuant to this Agreement and (ii) such Collateral Loan shall be Delivered
to the Collateral Agent.
ADMINISTRATION AND SERVICING OF CONTRACTS
(b)
Subcontracts. The Collateral Manager may, with the prior written consent of the
Administrative Agent, subcontract with any other Person for back office, servicing and
administrative functions or collecting the Collateral; provided that (i) the Collateral Manager shall
select any such Person with reasonable care and shall be solely responsible for the fees and
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Section 10.05. Additional Equity Contributions. The Parent may, but shall have no
obligation to, at any time or from time to time make a capital contribution to the Borrower for any
purpose, including for the purpose of curing any Default, satisfying any Coverage Test or the
Maximum Advance Rate Default Test, enabling the acquisition or sale of any Collateral Loan or
satisfying any conditions under Section 3.02. Each contribution shall either be made (i) in Cash
(in which event such contributions shall be made by deposit into the Collection Account), (ii) by
assignment and contribution of an Eligible Investment and/or (iii) by assignment of a Collateral
Loan that is an Eligible Collateral Loan. In connection with any contribution described in this
Section 10.05 (other than a contribution of a portion of the purchase price of a Collateral Loan
acquired in accordance with the Purchase and Contribution Agreement), the Collateral Manager
shall provide written instruction to the Administrative Agent identifying (a) the subclause under
which such contribution is being made (the “Contribution Notice”) and (b)(x) in the case of
contributions made in Cash, (A) the timing of such contribution and (B) the amount of such
contribution and (y) in the case of contributions made by assignment and contribution of an
Eligible Investment and/or by assignment of a Collateral Loan that is an Eligible Collateral Loan,
(A) the name of such Eligible Investment and/or Collateral Loan and (B) attaching the
accompanying assignment forms. All Cash contributed to the Borrower shall be treated as
Principal Proceeds, except to the extent that the Collateral Manager specifies in the Contribution
Notice that such Cash shall constitute Interest Proceeds and shall be deposited into the Collection
Account in accordance with Section 8.02 as designated by the Collateral Manager.
ARTICLE XI
Section 11.01. Designation of the Collateral Manager. (a) Initial Collateral Manager.
The servicing, administering and collection of the Collateral shall be conducted in accordance
with this Section 11.01 by the Person designated as the Collateral Manager hereunder. Main Street
is hereby appointed as, and hereby accepts such appointment and (until the Administrative Agent
gives Main Street a Collateral Manager Termination Notice) agrees to perform the duties and
responsibilities, of Collateral Manager pursuant to the terms hereof. The Collateral Manager and
the Borrower hereby acknowledge that each of the Secured Parties are third party beneficiaries of
the obligations taken by the Collateral Manager hereunder.
expenses payable to such Person, (ii) the Collateral Manager shall not be relieved of, and shall
remain liable for, the performance of the duties and obligations of the Collateral Manager pursuant
to the terms hereof without regard to any subcontracting arrangement, and (iii) any such
subcontract shall be terminable upon the occurrence of a Collateral Manager Termination Event
and shall be subject to the provisions hereof.
Section 11.02.Duties of the Collateral Manager.
(a)
The Collateral Manager shall take or cause to be taken all such actions as may be
necessary or advisable to service, administer and collect on the Collateral from time to time, all
in accordance with Applicable Law and the Collateral Management Standard. Without limiting
the foregoing, the duties of the Collateral Manager shall include the following:
(i)
the sole and exclusive authority to make any and all decisions with respect
to the Collateral and take or refrain from taking any and all actions with respect to the
Collateral, supervising the Collateral, including communicating with Obligors, executing
amendments, providing consents and waivers, exercising voting rights, enforcing and
collecting on
Borrower;
the Collateral and otherwise managing the Collateral on behalf of the
(ii)
preparing and submitting claims to Obligors on each Collateral Loan;
(iii)
maintaining all necessary servicing records with respect to the Collateral
and providing such reports to the Administrative Agent and each Lender (with copies to
the Collateral Agent, the Custodian and the Collateral Administrator) in respect of the
servicing of the Collateral (including information relating to its performance under this
Agreement) as may be required hereunder or as the Administrative Agent or any Lender
may reasonably request;
(iv)
maintaining and implementing administrative and operating procedures
(including an ability to recreate servicing records evidencing the Collateral in the event of
the destruction of the originals thereof) and keeping and maintaining all documents, books,
records and other information reasonably necessary or advisable for the collection of the
Collateral;
(v)
promptly delivering to the Administrative Agent, each Lender, the
Collateral Administrator, the Custodian or the Collateral Agent, from time to time, such
information and servicing records (including information relating to its performance under
this Agreement) as the Administrative Agent, each Lender, the Collateral Administrator,
the Custodian or the Collateral Agent may from time to time reasonably request;
(vi)
identifying each Collateral Loan clearly and unambiguously in its servicing
records to reflect that such Collateral Loan is owned by the Borrower and that the Borrower
is pledging a security interest therein to the Collateral Agent (for the benefit of the Secured
Parties) pursuant to this Agreement;
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(vii)
notifying the Administrative Agent and each Lender of any material action,
suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is
threatened to be asserted by an Obligor with respect to any Collateral Loan (or portion
thereof) of which it has actual knowledge or has received notice; or (2) that could
reasonably be expected to have a Material Adverse Effect;
(viii)
maintaining the perfected security interest of the Collateral Agent, for the
benefit of the Secured Parties, in the Collateral;
(ix)
with respect to each Collateral Loan included as part of the Collateral,
making copies of the Related Documents available for inspection by the Administrative
Agent, upon reasonable notice, at the offices of the Collateral Manager during normal
business hours;
(x)
directing the Collateral Agent (with a copy to the Collateral Administrator)
to make payments pursuant to the terms of the Monthly Report in accordance with the
Priority of Payments;
(xi)
directing the acquisition, sale or substitution of Collateral in accordance
with Article X;
(xii)
providing assistance to the Borrower with respect to the purchase and sale
of the Collateral Loans and Eligible Investments;
(xiii) instructing the Obligors and the administrative agents on the Collateral
Loans (or, in the case of a participation interest, the participation seller) to make payments
directly into the Collection Account;
(xiv)
preparing the Monthly Reports and cooperating with the Collateral
Administrator in their duties hereunder in the manner and at the times required hereunder;
(xv)
delivering assignments and promissory notes to the Document Custodian;
and
(xvi)
complying with such other duties and responsibilities as required of the
Collateral Manager by this Agreement.
It is acknowledged and agreed that in circumstances in which a Person other than the
Borrower or the Collateral Manager acts as lead agent with respect to any Collateral Loan, the
Collateral Manager shall perform its administrative and management duties hereunder only to the
extent a lender under the applicable Related Documents has the right to do so.
(b)
Notwithstanding anything to the contrary contained herein, the exercise by the
Administrative Agent, the Collateral Agent, the Collateral Administrator, each Lender and the
Secured Parties of their rights hereunder or any other Facility Document shall not release the
Collateral Manager (unless replaced by a Successor Collateral Manager) or the Borrower from
any of their duties or responsibilities with respect to the Collateral. The Secured Parties, the
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Administrative Agent, each Lender, the Collateral Administrator and the Collateral Agent shall
not have any obligation or liability with respect to any Collateral, nor shall any of them be
obligated to perform any of the obligations of the Collateral Manager hereunder, unless one of
them becomes a Successor Collateral Manager hereunder.
(c)
Any payment by an Obligor in respect of any indebtedness owed by it to the
Borrower shall, except as otherwise specified by such Obligor or otherwise required by contract
or Law and unless otherwise instructed by the Administrative Agent, be applied as a collection of
a payment by such Obligor (starting with the oldest such outstanding payment due, provided such
obligation is not on non-accrual) to the extent of any amounts then due and payable thereunder
before being applied to any other receivable or other obligation of such Obligor.
(d)
The Collateral Manager agrees to supervise and assist in the investment and
reinvestment of the Collateral, and shall perform on behalf of the Borrower the duties that have
been expressly delegated to the Collateral Manager in this Agreement and any other Facility
Document (and the Collateral Manager shall have no obligation to perform any other duties
hereunder or otherwise) and, to the extent necessary or appropriate to perform such duties, the
Collateral Manager shall have the power to execute and deliver all necessary and appropriate
documents and instruments on behalf of the Borrower with respect thereto. The Collateral
Manager shall comply with the terms and conditions hereof and any other Facility Document
expressly applicable to it, in its capacity as the Collateral Manager, or otherwise affecting the
duties and functions that have been delegated to it thereunder and hereunder as the Collateral
Manager and shall perform its obligations hereunder and thereunder in accordance with the
Collateral Management Standard.
Section 11.03.Limited Liability of the Collateral Manager.
(a)
The Collateral Manager and any of its Affiliates, employees, shareholders,
members, partners, assigns, representatives or agents (each such individual or entity, a “Collateral
(b) The Collateral Manager may rely in good faith upon, and will incur no Damages
for relying upon, (i) any authoritative source customarily used by firms performing services
similar to those services provided by the Collateral Manager under this Agreement, and (ii) the
advice of nationally recognized counsel, accountants or other advisors as the Collateral Manager
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Manager Person”) shall not be liable to the Borrower, any Lender, the Administrative Agent, the
Collateral Agent, the Collateral Administrator, the Custodian or any other Person for any liability,
loss (including amounts paid in settlement), damages, judgments, costs, expenses (including
reasonable attorneys’ fees and expenses and accountant’s fees and expenses), demands, charges
or claim (collectively, the “Damages”) incurred by reason of any act or omission or alleged act
or omission performed or omitted by such Collateral Manager Person, or for any decrease in the
value of the Collateral or any other losses suffered by any party; provided, however, that the
Collateral Manager shall be liable for any Damages that arise
(i) by reason of any act or omission constituting bad faith, willful misconduct, or gross negligence
by any Collateral Manager Person in the performance of or reckless disregard of the Collateral
Manager’s duties hereunder or (ii) by any breach of the representations and warranties of the
Collateral Manager expressly set forth in this Agreement (each such breach, a “Collateral
Manager Breach”).
determines reasonably appropriate in connection with the services provided by the Collateral
Manager under this Agreement.
(c)
In no event shall the Collateral Manager be liable for special, indirect or
consequential losses or damages of any kind whatsoever (including but not limited to lost profits)
even if the Collateral Manager has been advised of the likelihood of such damages and regardless
of the form of such action.
(d)
Each Collateral Manager Person shall be held harmless and be indemnified by the
Borrower for any Damages suffered by virtue of any acts or omissions or alleged acts or omissions
arising out of the activities of such Collateral Manager Person in the performance of the
obligations of the Collateral Manager under this Agreement or as a result of this Agreement, or
the Borrower’s ownership interest in any portion of the Collateral, except to the extent any such
Damage arises as a result of a Collateral Manager Breach. All amounts payable pursuant to this
Section 11.03 shall be payable in accordance with the Priority of Payments.
Section 11.04.Authorization of the Collateral Manager.
(a)
Each of the Borrower, the Administrative Agent and each Lender hereby authorizes
the Collateral Manager (including any successor thereto) to take any and all reasonable steps in its
name and on its behalf necessary or desirable in the determination of the Collateral Manager and
Section 11.05.Collection Efforts; Modification of Collateral.
(a)
The Collateral Manager will use commercially reasonable efforts to collect, or
cause to be collected, all payments called for under the terms and provisions of the Collateral
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not inconsistent with the sale of the Collateral Loans by the Parent to the Borrower under the
Purchase and Contribution Agreement and, thereafter, the grant by the Borrower to the Collateral
Agent, on behalf of the Secured Parties, hereunder, to collect all amounts due under any and all
Collateral, including endorsing any of their names on checks and other instruments representing
Collections, executing and delivering any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with respect to the
Collateral and, after the delinquency of any Collateral and to the extent permitted under and in
compliance with Applicable Law, to commence proceedings with respect to enforcing payment
thereof, to the same extent as the Collateral Manager could have done if it owned such Collateral.
The Borrower shall furnish the Collateral Manager (and any successors thereto) with any powers
of attorney and other documents necessary or appropriate to enable the Collateral Manager to carry
out its collateral management and administrative duties hereunder, and shall cooperate with the
Collateral Manager to the fullest extent in order to carry out its obligations hereunder. In case any
reasonable question arises as to its duties hereunder, the Collateral Agent and the Collateral
Administrator may request instructions from the Administrative Agent and shall be entitled at all
times to refrain from taking any actions unless it has received instruction from the Administrative
Agent. In no event shall the Collateral Manager be entitled to make any Secured Party a party to
any litigation without such Person’s express prior written consent, or to make the Borrower a party
to any litigation (other than any routine foreclosure or similar collection procedure) without the
Administrative Agent’s consent.
Loans included in the Collateral as and when the same become due, all in accordance with the
Collateral Management Standard.
(b)
In the performance of its obligations hereunder, the Borrower (or the Collateral
Manager on its behalf) may enter into any amendment or waiver of or supplement to any Related
Document; provided that the prior written consent of the Required Lenders shall be required if an
Event of Default has occurred and is continuing or would result from such amendment, waiver or
supplement. For the avoidance of doubt, any Collateral Loan that, as a result of any amendment
or supplement thereto, ceases to qualify as an Eligible Collateral Loan shall not be included in the
Borrowing Base.
Section 11.06. Collateral Management Compensation. As compensation for its servicing
and collateral management activities hereunder and reimbursement for its expenses, the Collateral
Manager shall be entitled to be paid the Collateral Management Fees and reimbursed its expenses
as provided in the Priority of Payments (subject to Section 9.01(c)).
Section 11.08. Collateral Manager Termination Notice; Appointment of Successor
Collateral Manager.
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Section 11.07. The Collateral Manager Not to Resign. The Collateral Manager shall not
resign from the obligations and duties hereby imposed on it except upon the Collateral Manager’s
determination that (a) the performance of its duties hereunder is or becomes impermissible under
Applicable Law and (b) there is no reasonable action that the Collateral Manager could take to
make the performance of its duties hereunder permissible under Applicable Law. Any such
determination permitting the resignation of the Collateral Manager shall be evidenced as to clause
(a) above by an opinion of counsel to such effect delivered to the Administrative Agent and each
Lender. No such resignation shall become effective until a Successor Collateral Manager shall
have assumed the responsibilities and obligations of the Collateral Manager in accordance with
Section 11.08 below.
(a) The Borrower, the Collateral Manager, each Lender and the Administrative Agent
hereby agree that, upon the occurrence and during the continuance of a Collateral Manager
Termination Event, the Administrative Agent may (1) provide at least ten (10) Business Days’
prior written notice to the Collateral Manager of its intent to remove the Collateral Manager, and
(2) following the expiration of such ten (10) Business Day period, provide a Collateral Manager
Termination Notice to the Collateral Manager (with a copy to the Collateral Agent and the
Collateral Administrator) and terminate all of the rights, obligations, power and authority of the
Collateral Manager under this Agreement. On and after the receipt by the Collateral Manager of
a Collateral Manager Termination Notice pursuant to this Section 11.08(a), the Collateral Manager
shall continue to perform all servicing and administrative functions under this Agreement until the
date specified in the Collateral Manager Termination Notice or otherwise specified by the
Administrative Agent in writing or, if no such date is specified in such Collateral Manager
Termination Notice or otherwise specified by the Administrative Agent, until a date mutually
agreed upon by the Collateral Manager and the Administrative Agent and shall be entitled to
receive the Collateral Management Fees therefor accrued until such date. After such date, the
Collateral Manager agrees that it will terminate its activities as Collateral Manager hereunder in a
manner that the Administrative Agent believes will facilitate the transition of the
performance of such activities to the Successor Collateral Manager, and except as provided herein
the Successor Collateral Manager shall assume each and all of the Collateral Manager’s
obligations to service and administer the Collateral, on the terms and subject to the conditions
herein set forth, and the Collateral Manager shall use its reasonable best efforts to assist the
Successor Collateral Manager in assuming such obligations.
(b)
At any time following the delivery of a Collateral Manager Termination Notice
and after the occurrence or declaration of the Commitment Termination Date, the Administrative
Agent may appoint a successor collateral manager (the “Successor Collateral Manager”) with
notice to the Collateral Agent and the Collateral Administrator, which appointment shall take
effect upon the Successor Collateral Manager accepting such appointment by a written assumption
in a form satisfactory to the Administrative Agent in its sole discretion. Upon the appointment of
a Successor Collateral Manager, the initial Collateral Manager shall have no liability with respect
to any action performed by the Successor Collateral Manager on or after the date that the Successor
Collateral Manager assumes the servicing and administrative duties of the Collateral Manager.
(c)
Upon its appointment, the Successor Collateral Manager shall be the successor in
(d)
The Borrower acknowledges that, after delivery of a Collateral Manager
Termination Notice and after the occurrence or declaration of the Commitment Termination Date,
the Administrative Agent or any of its Affiliates may act as the Successor Collateral Manager,
and the Borrower waives any and all claims against the Administrative Agent, each
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all respects to the Collateral Manager with respect to collateral management functions under this
Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto
placed on the Collateral Manager by the terms and provisions hereof, and all references in this
Agreement to the Collateral Manager shall be deemed to refer to the Successor Collateral
Manager; provided that the Successor Collateral Manager shall have (i) no liability with respect
to any action performed by the terminated Collateral Manager prior to the date that the Successor
Collateral Manager becomes the successor to the Collateral Manager or any claim of a third party
based on any alleged action or inaction of the terminated Collateral Manager, (ii) no obligation to
perform any advancing or any repurchase or substitution obligations, if any, of the Collateral
Manager unless it elects to do so in its sole discretion, (iii) no obligation to pay any Taxes required
to be paid by the Collateral Manager (provided that the Successor Collateral Manager shall pay
any income Taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of
any other party to the transactions contemplated hereby, and (v) no liability or obligation with
respect to any Collateral Manager indemnification obligations of any prior Collateral Manager,
including the original Collateral Manager. The indemnification obligations of the Successor
Collateral Manager, upon becoming a Successor Collateral Manager, are expressly limited to those
arising on account of its failure to act in good faith and with reasonable care under the
circumstances. In addition, the Successor Collateral Manager shall have no liability relating to the
representations and warranties of the Collateral Manager contained in Section 4.02. Any other
provision in this Agreement notwithstanding, if a Successor Collateral Manager is appointed, it
shall perform its obligations hereunder in good faith and with reasonable care, exercising a degree
of skill and attention no less than what it exercises to service similar assets for itself and for others,
such standard of care to be the “Collateral Management Standard” applicable to it.
Lender or any of their respective Affiliates, the Collateral Agent, the Custodian, the Document
Custodian, the Collateral Administrator and any of their Affiliates and the Collateral Manager
(other than claims relating to such Person’s gross negligence or willful misconduct) relating in
any way to the custodial or collateral administration functions having been performed by the
Administrative Agent or any of its Affiliates in any capacity hereunder in accordance with the
terms and provisions (including the standard of care) set forth in the Facility Documents.
ARTICLE XII
THE AGENTS
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Section 12.01.Authorization and Action. Each Lender hereby irrevocably appoints and
authorizes the Administrative Agent, the Collateral Administrator and the Collateral Agent to take
such action as agent on its behalf and to exercise such powers under this Agreement and, to the
extent applicable, the other Facility Documents as are delegated to such Agent by the terms hereof
and thereof, together with such powers as are reasonably incidental thereto, subject to the terms
hereof. No Agent shall have any duties or responsibilities, except those expressly set forth herein
or in the other Facility Documents to which it is a party, or any fiduciary relationship with any
Secured Party, and no implied covenants, functions, responsibilities, duties or obligations or
liabilities on the part of such Agent shall be read into this Agreement or any other Facility
Document to which such Agent is a party (if any) as duties on its part to be performed or observed.
No Agent shall have or be construed to have any other duties or responsibilities in respect of this
Agreement or any other Facility Document and the transactions contemplated hereby or thereby.
As to any matters not expressly provided for by this Agreement or the other Facility Documents,
no Agent shall be required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or refraining from acting)
upon the written instructions of the Majority Lenders or, with respect to the Collateral Agent, the
Administrative Agent; provided that such Agent shall not be required to take any action which
exposes such Agent, in its judgment, to personal liability, cost or expense or which is contrary to
this Agreement, the other Facility Documents or Applicable Law, or would be, in its judgment,
contrary to its duties hereunder, under any other Facility Document or under Applicable Law.
Each Lender agrees that in any instance in which the Facility Documents provide that the
Administrative Agent’s consent may not be unreasonably withheld, provide for the exercise of the
Administrative Agent’s reasonable discretion, or provide to a similar effect, it shall not in its
instructions (or, by refusing to provide instruction) to the Administrative Agent withhold its
consent or exercise its discretion in an unreasonable manner.
If the Collateral Agent has been requested or directed by the Majority Lenders or the
Required Lenders, as applicable (or by the Administrative Agent acting at the direction of the
Majority Lenders or the Required Lenders), to take any action pursuant to any provision of this
Agreement or any other Facility Document, the Collateral Agent shall not be under any obligation
to exercise any of the rights or powers vested in it by this Agreement or such Facility Document
in the manner so requested unless it shall have been provided indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which may be incurred by it in compliance with or
in performing such request or direction. No provision of this Agreement or any other Facility
Document shall otherwise be construed to require the Collateral Agent to expend or risk its own
funds or to take any action that could in its judgment cause it to incur any
cost, expenses or liability, unless it is provided indemnity acceptable to it against any such
expenditure, risk, costs, expense or liability. For the avoidance of doubt, the Collateral Agent
shall not have any duty or obligation to take any action to exercise or enforce any power, right or
remedy available to it under this Agreement or any other Facility Document or any Related
Document unless and until directed by the Majority Lenders or the Required Lenders, as
applicable (or the Administrative Agent on their behalf).
If in performing its duties under this Agreement, the Collateral Agent is required to decide
between alternative courses of action, it may request written instructions from the Administrative
Agent as to the course of action desired by it. If the Collateral Agent does not receive such
instructions within five Business Days after it has requested them, the Collateral Agent may, but
shall be under no duty to, take or refrain from taking any such courses of action. The Collateral
Agent shall act in accordance with instructions received after such five-Business Day period
except to the extent it has already, in good faith, taken or committed itself to take, action
inconsistent with such instructions.
Section 12.02. Delegation of Duties. Each Agent may execute any of its duties under this
Agreement and each other Facility Document by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall
be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
Section 12.03. Agent’s Reliance, Etc. (a) None of the Agents nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any of the other Facility Documents,
except for its or their own gross negligence or willful misconduct. Without limiting the generality
of the foregoing, each Agent: (i) may consult with legal counsel (including counsel for the
Borrower or the Collateral Manager or any of their Affiliates) and independent public accountants
and other experts selected by it and shall not be liable for any action taken or
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Neither the Collateral Agent nor any officer, agent or representative thereof shall be
personally liable for any action taken by any such Person in accordance with any notice given by
the Majority Lenders or the Required Lenders, as applicable (or by the Administrative Agent
acting at the direction of the Majority Lenders or the Required Lenders), pursuant to the terms of
this Agreement or any other Facility Document even if, at the time such action is taken by any
such Person, the Majority Lenders or the Required Lenders, as applicable, or Persons purporting
to be the Majority Lenders or the Required Lenders, as applicable, are not entitled to give such
notice, except where the Responsible Officer of the Collateral Agent has actual knowledge
(without any duty of inquiry or investigation on its part) that the Majority Lenders or the Required
Lenders, as applicable, or Persons purporting to be the Majority Lenders or the Required Lenders,
as applicable, are not entitled to give such notice. The Collateral Agent shall be entitled to
conclusively rely upon directions provided by the Administrative Agent as if provided by the
requisite Lenders authorized to provide such direction hereunder. If any dispute or disagreement
shall arise as to the allocation of any sum of money received by the Collateral Agent hereunder
or under any Facility Document, the Collateral Agent shall have the right to deliver such sum to
a court of competent jurisdiction and therein commence an action for interpleader.
omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants
or experts; (ii) makes no warranty or representation to any Secured Party or any other Person and
shall not be responsible to any Secured Party or any Person for any statements, warranties or
representations (whether written or oral) made in or in connection with this Agreement or the other
Facility Documents; (iii) shall not have any duty to monitor, ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this Agreement, the
other Facility Documents or any Related Documents or any notice, consent, certificate, instruction
or waiver, report, statement, opinion, direction or other instrument or writing on the part of the
Borrower or the Collateral Manager or any other Person or to inspect the property (including the
books and records) of the Borrower or the Collateral Manager; (iv) shall not be responsible to any
Secured Party or any other Person for the due execution, legality, validity, enforceability,
perfection, genuineness, sufficiency or value of any Collateral, this Agreement, the other Facility
Documents, any Related Document or any other instrument or document furnished pursuant hereto
or thereto or for the validity, perfection, priority or enforceability of the Liens on the Collateral
(including monitoring, maintaining or filing of any financing or continuation statements); (v) shall
incur no liability under or in respect of this Agreement or any other Facility Document by relying
on or acting upon (or by refraining from action in reliance on) any notice, consent, certificate
(including for the avoidance of doubt, the Borrowing Base Calculation Statement), instruction or
waiver, report, statement, opinion, direction or other instrument or writing (which may be
delivered by telecopier, email, cable or telex, if acceptable to it) believed by it to be genuine and
believed by it to be signed or sent by the proper Person;
(vi) other than as expressly set forth herein, shall not be responsible to any Person for any recitals,
statements, information, representations or warranties regarding the Borrower or the Collateral or
in any document, certificate or other writing delivered in connection herewith or therewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability,
priority or sufficiency of thereof or any such other document or the financial condition of any
Person or be required to make any inquiry concerning either the performance or observance of any
of the terms, provisions or conditions related to any Person or the existence or possible existence
of any Default or Event of Default; and (vii) other than as expressly set forth herein, shall not have
any obligation whatsoever to any Person to assure that any collateral exists or is owned by any
Person or is cared for, protected or insured or that any liens have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to
exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or
fidelity any of the rights, authorities and powers granted or available with respect thereto. No
Agent shall have any liability to the Borrower or any Lender or any other Person for the
Borrower’s, the Collateral Manager’s, any Lender’s or any other Person’s, as the case may be,
performance of, or failure to perform, any of their respective obligations and duties under this
Agreement or any other Facility Document.
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(b)
No Agent shall be liable for the actions or omissions of any other Agent (including,
without limitation, concerning the application of funds) or other party to a Facility Document, or
under any duty to monitor or investigate compliance on the part of any other Agent or other party
to a Facility Document with the terms or requirements of this Agreement, any Facility Documents
or any Related Documents, or their duties hereunder or thereunder. Each Agent shall be entitled
to assume the due authority of any signatory and genuineness of any signature appearing on any
instrument or document it may receive (including, without limitation, each Notice of Borrowing
received hereunder). No Agent shall be liable for any action taken in
good faith and reasonably believed by it to be within the powers conferred upon it, or taken by it
pursuant to any direction or instruction by which it is governed, or omitted to be taken by it by
reason of the lack of direction or instruction required hereby for such action (including, without
limitation, for refusing to exercise discretion or for withholding its consent in the absence of its
receipt of, or resulting from a failure, delay or refusal on the part of the Required Lenders to
provide, written instruction to exercise such discretion or grant such consent from the Required
Lenders, as applicable). No Agent shall be liable for any error of judgment made in good faith
unless it shall be proven by a court of competent jurisdiction that such Agent was grossly negligent
in ascertaining the relevant facts. Nothing herein or in any Facility Documents or Related
Documents shall obligate any Agent to advance, expend or risk its own funds, or to take any action
which in its reasonable judgment may cause it to incur any expense or financial or other liability
for which it is not adequately indemnified. No Agent shall be liable for any indirect, special,
punitive or consequential damages (including but not limited to lost profits) whatsoever, even if
it has been informed of the likelihood thereof and regardless of the form of action. No Agent
shall be charged with knowledge or notice of any matter (including any Default or Event of
Default) unless actually known to a Responsible Officer of such Agent, or unless and to the extent
written notice of such matter is received by such Agent at its address in accordance with Section
16.02. Any permissive grant of power to an Agent hereunder shall not be construed to be a duty
to act. Each Agent shall have only the duties and responsibilities as are specifically set forth in
this Agreement and no covenants, implied duties or obligations shall be implied in this Agreement
against any Agent. Before acting hereunder, an Agent shall be entitled to request, receive and rely
upon such certificates and opinions as it may reasonably determine appropriate with respect to the
satisfaction of any specified circumstances or conditions precedent to such action. Neither Agent
shall be bound to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order,
approval or other paper or document. Neither Agent shall be liable for any error of judgment, or
for any act done or step taken or omitted by it, in good faith, or for any mistakes of fact or law, or
for anything that it may do or refrain from doing in connection herewith except in the case of its
willful misconduct or grossly negligent performance or omission of its duties.
(d)
The delivery of reports and other documents and information to the Collateral
Agent hereunder or under any other Facility Document is for informational purposes only and the
Collateral Agent’s receipt of such documents and information shall not constitute constructive
notice of any information contained therein or determinable from information contained therein.
The Collateral Agent is hereby authorized and directed to execute and deliver the other Facility
Documents to which it is a party. Whether or not expressly stated in such Facility Documents, in
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(c)
No Agent shall be responsible or liable for delays or failures in performance
resulting from acts beyond its control. Such acts shall include but not be limited to acts of God,
strikes, lockouts, riots, acts of war, epidemics, diseases, pandemics, quarantines, governmental
regulations imposed after the fact, fire, communication line failures, computer viruses, power
failures, loss or malfunction of utilities, communications or computer (software and hardware)
services, earthquakes or other disasters, national emergency, malware or ransomware attack,
unavailability of the Federal Reserve wire or telex system or other applicable wire or funds
transfer system, or unavailability of any securities clearing system.
performing (or refraining from acting) thereunder, the Collateral Agent shall have all of the
rights, benefits, protections and indemnities that are afforded to it in this Agreement.
(e)
Each Lender acknowledges that except as expressly set forth in this Agreement, no
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Agent has made any representation or warranty to it, and that no act by any Agent hereafter taken,
including any consent and acceptance of any assignment or review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by such Agent to any Secured Party
as to any matter. Each Lender represents to each Agent that it has, independently and without
reliance upon such Agent and based on such documents and information as it has deemed
appropriate, made its own appraisal of an investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower and the Collateral
Manager, and made its own decision to enter into this Agreement and the other Facility Documents
to which it is a party. Each Lender also represents that it will, independently and without reliance
upon any Agent or any other Secured Party 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 this Agreement and the Facility Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and the Collateral Manager. No Agent shall
have any duty or responsibility to provide any Secured Party with any credit or other information
concerning the business, prospects, operations, property, financial or other condition or
creditworthiness of the Borrower or Collateral Manager which may come into the possession of
such Agent.
Section 12.04. Indemnification. Each of the Lenders agrees to indemnify and hold the
Agents, the Document Custodian, the Custodian (including Citibank, as “Securities Intermediary”
under the Account Control Agreement (acting at the direction of the Collateral Agent (acting at
the direction of the Secured Parties, following the delivery of notice of exclusive control under the
Account Control Agreement))), harmless (to the extent not reimbursed by or on behalf of the
Borrower pursuant to Section 16.04 or otherwise) from and against any and all Liabilities which
may be imposed on, incurred by, or asserted against the Agents in any way relating to or arising
out of this Agreement or any other Facility Document or any Related Document or any action
taken or omitted by the Agents under this Agreement or any other Facility Document or any
Related Document; provided that no Lender shall be liable to any Agent for any portion of such
Liabilities resulting from such Agent’s gross negligence or willful misconduct; and provided,
further, that no Lender shall be liable to the Collateral Agent for any portion of such Liabilities
unless such Liabilities are imposed on, incurred by, or asserted against the Collateral Agent as a
result of any action taken, or not taken, by the Collateral Agent by the express terms of this
Agreement or at the direction of the Administrative Agent or such Lender or Lenders, as the case
may be, in accordance with the terms and conditions set forth in this Agreement (it being
understood and agreed that the Collateral Agent shall be under no obligation to exercise or to honor
any of the rights or powers vested in it by this Agreement at the request or direction of the
Administrative Agent or any of the Lenders (or other Persons authorized or permitted under the
terms hereof to make such request or give such direction) pursuant to this Agreement or any of the
other Facility Document, unless the Administrative Agent or such Lenders shall have provided to
the Collateral Agent security or indemnity reasonably satisfactory to it against the costs, expenses
(including reasonable and documented attorney’s fees and expenses) and Liabilities which might
reasonably be incurred by it in compliance with such
request or direction, whether such indemnity is provided under this Section 12.04 or otherwise).
The rights of the Agents and obligations of the Lenders under or pursuant to this Section 12.04
shall survive the termination of this Agreement, and the earlier removal or resignation of any
Agent hereunder.
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Section 12.05. Successor Agents. Subject to the terms of this Section 12.05, each Agent
may resign as Administrative Agent or Collateral Agent, as applicable, upon (a) thirty days’ notice
to the Borrower, the Collateral Manager, the Administrative Agent and each Lender, unless such
notice period is waived by the Borrower and the Administrative Agent or (b) a determination by
such Agent that (i) the performance of its duties hereunder is or becomes impermissible under
Applicable Law and (ii) there is no reasonable action that the Collateral Agent could take to make
the performance of its duties hereunder permissible under Applicable Law. If an Agent shall
resign then the Required Lenders shall appoint a successor agent. If for any reason a successor
agent is not so appointed and does not accept such appointment within thirty days of notice of
resignation such Agent may appoint a successor agent. The appointment of any successor Agent
shall be subject to the prior written consent of the Borrower (which consent shall not be
unreasonably withheld or delayed); provided that the consent of the Borrower to any such
appointment shall not be required if (i) a Default or Event of Default shall have occurred and is
continuing or (ii) if such successor agent is a Lender or an Affiliate of such Agent or any Lender.
Any resignation of an Agent shall be effective upon (a) the appointment of a successor agent
pursuant to this Section 12.05 and (b) the successor agent has agreed in writing to the Borrower
and the Collateral Manager to assume all of the Collateral Agent’s duties and obligations pursuant
to this Agreement and shall have executed and delivered an agreement in form and content
reasonably satisfactory to the Administrative Agent, the Borrower, and the Collateral Manager.
After the effectiveness of any retiring Agent’s resignation hereunder as Agent, the retiring Agent
shall be discharged from its duties and obligations hereunder and under the other Facility
Documents and the provisions of this Article XII shall continue in effect for its benefit with respect
to any actions taken or omitted to be taken by it while it was Agent under this Agreement and
under the other Facility Documents. Any Person (i) into which the Collateral Agent may be
merged or consolidated, (ii) that may result from any merger or consolidation to which the
Collateral Agent shall be a party, or (iii) that may succeed to the corporate trust properties and
assets of the Collateral Agent substantially as a whole, shall be the successor to the Collateral
Agent under this Agreement without further act of any of the parties to this Agreement. If no
successor Collateral Agent or Collateral Administrator, as applicable, shall have been appointed
and an instrument of acceptance by a successor Collateral Agent or Collateral Administrator, as
applicable, shall not have been delivered to the Collateral Agent or the Collateral Administrator,
as applicable, within sixty days after giving of notice of resignation by the Collateral Agent or the
Collateral Administrator, as applicable, the resigning Collateral Agent or Collateral
Administrator, as applicable, may petition any court of competent jurisdiction for the appointment
of a successor Collateral Agent or Collateral Administrator, as applicable.
Section 12.06. Compensation. The Borrower agrees to pay, and the Collateral Agent shall
be entitled to receive, compensation for the Collateral Agent’s performance of the duties called
for herein as provided in the Collateral Agent and Collateral Administrator Fee Letter. The
Borrower agrees to pay or reimburse to the Collateral Agent upon its request from time to time all
reasonable and documented out-of-pocket costs, disbursements, advances, and expenses
(including reasonable fees and expenses of legal counsel) incurred in connection with the
preparation or execution of this Agreement, or in connection with the transactions contemplated
hereby or the administration of this Agreement or performance by the Collateral Agent of its
duties and services under this Agreement (including costs and expenses of any action deemed
necessary by the Collateral Agent to collect any amounts owing to it under this Agreement). All
payments hereunder, including, but not limited to indemnities, shall be paid in accordance with
the Priority of Payments.
Section 12.07.Erroneous Payments.
(a)
If the Administrative Agent or the Collateral Agent notifies a Lender or Secured
Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such
(b)
Without limiting immediately preceding clause (a), each Lender or Secured Party,
or any Person who has received funds on behalf of a Lender or Secured Party, hereby further
agrees that if it receives a payment, prepayment or repayment (whether received as a payment,
prepayment or repayment of principal, interest, fees, distribution or otherwise) from the
Administrative Agent or the Collateral Agent (or any of its Affiliates) (x) that is in a different
amount than, or on a different date from, that specified in a notice of payment, prepayment or
repayment sent by the Administrative Agent or the Collateral Agent (or any of its Affiliates) with
respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by
a notice of payment, prepayment or repayment sent by the Administrative Agent or the Collateral
Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient,
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Lender, Secured Party or other recipient, a “Payment Recipient”), that the Administrative Agent
or the Collateral Agent has determined in its sole discretion (whether or not after receipt of any
notice under immediately succeeding clause (b)) that any funds received by such Payment
Recipient from the Administrative Agent, the Collateral Agent, on behalf of the Administrative
Agent, or any of their Affiliates were erroneously transmitted to, or otherwise erroneously or
mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured
Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment,
prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and
collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a
portion thereof), such Erroneous Payment shall at all times remain the property of the
Administrative Agent or the Collateral Agent, on behalf of the Administrative Agent, and shall
be segregated by the Payment Recipient and held in trust for the benefit of the Administrative
Agent or the Collateral Agent, on behalf of the Administrative Agent, and such Lender or Secured
Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall
cause such Payment Recipient to) promptly, but in no event later than two Business Days
thereafter, return to the Administrative Agent or the Collateral 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 Administrative Agent or the Collateral Agent in
same day funds at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation from
time to time in effect. A notice of the Administrative Agent or the Collateral Agent to any Payment
Recipient under this clause (a) shall be conclusive, absent manifest error.
otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in
part) in each case:
(i)
(A) in the case of immediately preceding clauses (x) or (y), an error shall
be presumed to have been made (absent written confirmation from the
Administrative Agent or the Collateral Agent to the contrary) or (B) an error has
been made (in the case of immediately preceding clause (z)), in each case, with
respect to such payment, prepayment or repayment; and
(ii)
such Lender or Secured Party shall (and shall cause any other recipient
that receives funds on its respective behalf to) promptly (and, in all events, within
one Business Day of its knowledge of such error) notify the Administrative Agent
or the Collateral Agent of its receipt of such payment, prepayment or repayment,
the details thereof (in reasonable detail) and that it is so notifying the
Administrative Agent or the Collateral Agent pursuant to this Section 12.07(b).
(c)
Each Lender or Secured Party hereby authorizes the Administrative Agent and the
Collateral Agent to set off, net and apply any and all amounts at any time owing to such Lender
or Secured Party under any Facility Document, or otherwise payable or distributable by the
Administrative Agent or the Collateral Agent to such Lender or Secured Party from any source,
against any amount due to the Administrative Agent or the Collateral Agent under immediately
preceding clause (a) or under the indemnification provisions of this Agreement.
(d)
In the event that an Erroneous Payment (or portion thereof) is not recovered by the
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Administrative Agent or the Collateral Agent for any reason, after demand therefor by the
Administrative Agent or the Collateral Agent in accordance with immediately preceding clause
(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from
any Payment Recipient who received such Erroneous Payment (or portion thereof) on its
respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon
the Administrative Agent’s or the Collateral Agent’s notice to such Lender at any time, (i) such
Lender shall be deemed to have assigned its Advances (but not its Commitments) to the
Administrative Agent with respect to which such Erroneous Payment was made (the “Erroneous
Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or
such lesser amount as the Administrative Agent may specify) (such assignment of the Advances
(but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment
Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to
be waived by the Administrative Agent in such instance), and is hereby (together with the
Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent
applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to
an electronic transmission system as to which the Administrative Agent and such parties are
participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender
shall deliver any promissory notes evidencing such Advances to the Borrower or the
Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to
acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the
Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to
such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a
Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding,
for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement
and its applicable Commitments which shall survive as to such assigning Lender, and
(iv) the Administrative Agent may reflect in the Register its ownership interest in the Advances
subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its
discretion, sell any Advances acquired pursuant to an Erroneous Payment Deficiency Assignment
and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing
by the applicable Lender shall be reduced by the net proceeds of the sale of such Advance (or
portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims
against such Lender (and/or against any recipient that receives funds on its respective behalf). For
the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the
Commitments of any Lender and such Commitments shall remain available in accordance with
the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that
the Administrative Agent has sold an Advance (or portion thereof) acquired pursuant to an
Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative
Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated
to all the rights and interests of the applicable Lender or Secured Party under the Facility
Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment
Subrogation Rights”).
(e)
The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay,
discharge or otherwise satisfy any Obligations owed by the 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 Collateral Agent or the Administrative Agent
from the Borrower for the purpose of making such Erroneous Payment (including from amounts
disbursed from the Collection Account).
(f)
To the extent permitted by applicable law, no Payment Recipient shall assert any
right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim,
counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or
counterclaim by the Administrative Agent and the Collateral Agent for the return of any
Erroneous Payment received, including without limitation waiver of any defense based on
“discharge for value” or any similar doctrine.
(g)
Each party’s obligations, agreements and waivers under this Section 12.07 shall
survive the resignation or replacement of the Administrative Agent or the Collateral Agent, any
transfer of rights or obligations by, or the replacement of, a Lender, the termination of the
Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion
thereof) under any Facility Document.
Section 12.08.Instructions to Collateral Agent
(a)
The Collateral Agent shall be entitled to refrain from taking any action unless it has
been instructed in writing by the Borrower (or the Collateral Manager on the Borrower’s behalf),
the Required Lenders or the Administrative Agent, as applicable, as it reasonably deems necessary.
In the absence of gross negligence or willful misconduct by the Collateral Agent, the Collateral
Agent shall have no liability for any action (or forbearance from action) taken pursuant
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to such written instructions of the Borrower, the Collateral Manager, the Required Lenders or the
Administrative Agent, as applicable.
(b)
Whenever the Collateral Agent is entitled or required to receive or obtain any
communications or information pursuant to or as contemplated by this Agreement, it shall be
entitled to receive the same in writing, in form, content and medium reasonably acceptable to it
and otherwise in accordance with any applicable term of this Agreement; and whenever any report
or other information is required to be produced or distributed by the Collateral Agent it shall be
in form, content and medium reasonably acceptable to it and the Borrower, and otherwise in
accordance with any applicable term of this Agreement.
(c)
In case any reasonable question arises as to its duties hereunder, the Collateral
Agent may, so long as no Event of Default has occurred and is continuing, request instructions
from the Collateral Manager and may, at any time, request instructions from the Administrative
Agent, and shall be entitled at all times to refrain from taking any action unless it has received
instructions from the Collateral Manager or the Administrative Agent, as applicable. The
Collateral Agent shall, in the absence of gross negligence or willful misconduct by the Collateral
Agent, have no liability, risk or cost for any action taken pursuant to and in compliance with the
instruction of the Administrative Agent.
Section 12.09.The Collateral Agent.
(a)
It is expressly acknowledged and agreed that the Collateral Agent is not
guaranteeing the performance of or assuming any liability for the obligations of the other parties
hereto or any portion of the Collateral.
(b)
The Collateral Agent shall not be responsible for the preparation or filing of any
UCC financing statements or continuation statements or the correctness of any financing
statements filed in connection with this Agreement or the validity or perfection of any lien or
security interest created pursuant to this Agreement.
(c)
The Collateral Agent shall not be liable for interest on any money received by it
except as the Collateral Agent may agree in writing with the Borrower. In no event shall the
Collateral Agent be liable for the selection of any investments or any losses in connection
therewith (except in its capacity as obligor thereunder, if applicable), or for any failure of the
relevant party to provide investment instruction to the Collateral Agent in connection with the
investment of funds in or from any account set forth herein.
(d)
The Collateral Agent shall have no liability for any failure, inability or
unwillingness on the part of the Collateral Manager, the Borrower, the Collateral Administrator
or the Administrative Agent to provide accurate and complete information on a timely basis to
the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this
Agreement, and shall have no liability for any inaccuracy or error in the performance or
observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results
from any such inaccurate, incomplete or untimely information received by it, or other failure on
the part of any such other party to comply with the terms hereof.
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(e)
The Collateral Agent shall have no duty to determine or inquire into the happening
or occurrence of any event or contingency, and it is agreed that its duties hereunder are purely
ministerial in nature.
(f)
Should any controversy arise between the undersigned with respect to the
Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of the
Administrative Agent on behalf of the Secured Parties.
(g)
The powers conferred on the Collateral Agent hereunder are solely to protect its
interest (on behalf of the Secured Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for performing the obligations expressly imposed on the
Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral or
responsibility for ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not the Collateral Agent
has or is deemed to have knowledge of such matters or taking any steps to preserve rights against
prior parties or other rights pertaining to any Collateral.
(h)
In order to comply with the laws, rules, regulations and executive orders in effect
from time to time applicable to banking institutions, including those relating to the funding of
terrorist activities and money laundering, the Collateral Agent may be required to obtain, verify
and record certain information relating to individuals and entities which maintain a business
relationship with the Collateral Agent. Accordingly, each of the parties hereto agrees to provide
to the Collateral Agent upon its request from time to time such identifying information and
documentation as may be available to such party in order to enable the Collateral Agent to comply
with such requirements.
(i)
If Citibank or the Collateral Agent is also acting in another capacity, including as
Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded
to Citibank or the Collateral Agent pursuant to this Article XII shall also be afforded to Citibank
or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits,
immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections,
benefits, immunities and indemnities provided in the Custodian Agreement, Account Control
Agreement or any other Facility Documents to which Citibank or the Collateral Agent in such
capacity is a party.
(j)
The Collateral Agent shall not have any obligation to determine if a Collateral
Loan meets the criteria specified in the definition of Eligible Collateral Loan or if the requirements
set forth in the definition of “Deliver” have been satisfied.
(k)
The Collateral Administrator shall be entitled to the same rights, protections and
indemnities as set forth with respect to the Collateral Agent in this Article XII.
(l)
Notwithstanding the foregoing, whenever reference is made in any Facility
Document to any action by, consent, designation, specification, requirement or approval of, notice,
request or other communication from, or other direction given or action to be undertaken or to be
(or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion,
acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or
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remedies to be made (or not to be made) by the Collateral Agent, it is understood that in all cases
the Collateral Agent shall be acting, giving, withholding, suffering, omitting, making or otherwise
undertaking and exercising the same (or shall not be undertaking and exercising the same) solely as
directed in writing by the Administrative Agent acting at the instruction of the Required Lenders
(or such other Lenders or percentage thereof as shall be expressly required hereunder). The
Collateral Agent may at any time request instructions from the Administrative Agent with respect
to any actions or approvals which, by the terms of this Agreement or any of the Facility
Documents, the Collateral Agent is permitted or required to take or to grant, and the Collateral
Agent shall be absolutely entitled to refrain from taking any such action or to withhold any such
approval and shall not be under any liability whatsoever solely as a result thereof until it shall
have received such instructions from the Administrative Agent acting at the direction of such
Lenders. The Collateral Agent shall not have any liability for any failure or delay in taking any
actions contemplated above as a result of a failure or delay on the part of the requisite Lenders (or
the Administrative Agent on their behalf) to provide such instruction.
(m)
With respect to any notices, reports, requests for waiver, consent requests or any
other requests relating to corporate actions affecting any Equity Securities (together, the “Bond
Corporate Actions”), the delivery of such shall be made solely via Citibank's corporate action
notification system or such other reasonable notification method as implemented by the Collateral
Agent with notification to the Collateral Manager. In order to receive such Bond Corporate
Actions, the Collateral Manager may be required to register for an account with Citibank's
corporate action notification system. Neither the Collateral Agent nor the Collateral Administrator
shall have no obligation or liability with respect to any Bond Corporate Actions.
Section 12.10
Termination of Collateral Agent. The Collateral Agent may be removed,
with or without cause, by the Administrative Agent, with the consent of the Borrower (if such
removal is without cause) so long as no Event of Default has occurred and is continuing, by
at
least
30
days’
notice
givenin
writing
to
theCollateral
Agent.
THE DOCUMENT CUSTODIAN
Section 13.01.Designation of Document Custodian.
(a)
Initial Document Custodian. The role of Document Custodian with respect to the
Collateral Loans shall be conducted by the Person designated as Document Custodian hereunder
from time to time in accordance with this Section 13.01. Until the Administrative Agent shall
give to Citibank a Document Custodian Termination Notice, Citibank is hereby appointed as, and
hereby accepts such appointment and agrees to perform the duties and obligations of, Document
Custodian pursuant to the terms hereof.
(b)
Successor Document Custodian. Upon the Document Custodian’s receipt of a
Document Custodian Termination Notice from the Administrative Agent of the designation of a
successor Document Custodian pursuant to the provisions of Section 13.05, the Document
Custodian agrees that it will terminate its activities as Document Custodian hereunder. Upon the
resignation of the Document Custodian, the Administrative Agent shall appoint a successor
Document Custodian and if it does not do so within thirty days of the Document Custodian’s
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resignation, the Document Custodian may petition a court of competent jurisdiction for the
appointment of a successor.
Section 13.02.Duties of Document Custodian.
(a)
Appointment.Each of the Borrower and the Administrative Agent hereby
designate and appoint the Document Custodian to act as its agent and hereby authorizes the
(b)
Duties. On the Closing Date, and until its removal pursuant to Section 13.05, each
of the Document Custodian and the Collateral Administrator, as applicable, shall perform, on
behalf of the Administrative Agent and the other Secured Parties, the following duties and
obligations:
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Document Custodian to take such actions on its behalf and to exercise such powers and perform
such duties as are expressly granted to the Document Custodian by this Agreement. The
Document Custodian hereby accepts such agency appointment to act as Document Custodian
pursuant to the terms of this Agreement, until its resignation or removal as Document Custodian
pursuant to the terms hereof. The Document Custodian shall have no duties hereunder except for
those expressly contemplated by this Agreement to be performed by the Document Custodian. By
entering into, or performing its duties under, this Agreement, the Document Custodian shall not
be deemed to assume any obligations or liabilities of the Borrower or the Collateral Manager under
this Agreement, and nothing herein contained shall be deemed to release, terminate, discharge,
limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or
liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any
other Facility Document.
(i)
The Document Custodian shall take and retain custody of, with respect to
the Related Documents, any original promissory notes or original assignment agreements,
and the Collateral Administrator shall take and retain custody of electronic copies of the
Related Documents (including any copies of promissory notes or assignment agreements)
and the Loan Checklist, in each case, delivered by the Borrower pursuant to Section 7.05
in accordance with the terms and conditions of this Agreement, in each case, for the
benefit of the Secured Parties and subject to the Lien thereon in favor of the Collateral
Agent, for the benefit of the Secured Parties. For the avoidance of doubt, any items in the
Related Documents or other items of Collateral that are delivered in electronic
form shall be delivered solely to the Collateral Administrator. Within five Business
Days of its receipt of the Related Documents (including, in the case of promissory notes
and assignment agreements, electronic copies of such items) and an electronic copy of the
Loan Checklist, the Collateral Administrator shall review the Related Documents
delivered to it to confirm that, on their face, each item listed on the Loan Checklist
required to be delivered to the Collateral Administrator pursuant to this Agreement has
been delivered to the Collateral Administrator (the “Review Criteria”).
In order to
facilitate the foregoing review by the Collateral Administrator, in connection with each
delivery of Related Documents hereunder to the Collateral Administrator, the Collateral
Manager shall provide to the Collateral Administrator an electronic file (in EXCEL or a
comparable format acceptable to the Collateral Administrator) of the related Loan
Checklist that contains a list of all Related Documents. Notwithstanding anything herein
to the contrary, the Collateral Administrator’s obligation to review the Related
Documents shall be limited to reviewing such Related Documents based on the
information provided on the Loan Checklist and the Collateral Administrator shall be
under no duty or obligation to inspect, review or examine any such documents, instruments
or certificates to independently determine that they are genuine, enforceable, duly
authorized or appropriate for the represented purpose, any assignment or endorsement is
in proper form, or any document is other than what it purports to be on its face. If, at the
conclusion of such review, the Collateral Administrator shall determine that any Review
Criteria is not satisfied, the Collateral Administrator shall within one Business Day notify
the Collateral Manager and the Administrative Agent (which may be via email) of such
determination and provide the Administrative Agent, the Collateral Manager and the
Borrower with a list of the non-complying Collateral Loans and the applicable Review
Criteria that they fail to satisfy. The Collateral Manager shall have ten Business Days to
correct any non-compliance with any Review Criteria. In addition, if requested in writing
in the form of Exhibit E by the Collateral Manager and approved by the Administrative
Agent within ten Business Days of the Collateral Administrator’s notification to the
Collateral Manager and the Administrative Agent of its review of the Review Criteria, the
Collateral Administrator shall return the Related Documents for any Collateral Loan which
fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Document
Custodian and the Collateral Administrator shall not have any responsibility for reviewing
any Related Documents.
(ii)
In taking and retaining custody of the Related Documents, each of the
(iii)
All original promissory notes and assignment agreements actually
delivered to the Document Custodian shall be kept at (a) prior to the Resignation Effective
Date, 399 Park Avenue, Level “C” - Securities Vault, New York, NY 10022, Attention:
Mr. Keith Whyte, MSCC Funding I, LLC, telephone: (212) 559-1207 or (b) on and after
the Resignation Effective Date, Western Alliance Trust Company, N.A., 3601 Minnesota
Drive,
Suite
800,
Bloomington,
MN
55435,
E-Mail:
MSCCFunding@westernalliancetrust.com, Attention: Corporate Trust – MSCC Funding
I, LLC, or at such other office as shall be specified to the Administrative Agent and the
Collateral Manager by the Document Custodian. All such documents delivered to the
Document Custodian must be sent by trackable courier service (e.g. UPS or Federal
Express). All original promissory notes and assignment agreements shall be placed
together with an appropriate identifying label and maintained in such a manner so as to
permit retrieval and access. The Document Custodian shall segregate the original
promissory notes and assignment agreements on its inventory system and will not
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Document Custodian and the Collateral Administrator shall be deemed to be acting as the
agent of the Secured Parties; provided that neither the Document Custodian nor the
Collateral Administrator makes any representations as to the existence, perfection or
priority of any Lien on the Related Documents or the instruments therein; and provided,
further, that each of the Document Custodian’s and the Collateral Administrator’s duties
as agent shall be limited to those expressly contemplated herein and no implied obligations
or responsibilities shall be read into this Agreement against or on the part of the
DocumentCustodian or the Collateral Administrator, as applicable.
commingle the physical promissory notes and assignment agreements with any other files
of the Document Custodian.
(iv)
[Reserved].
(v)
[Reserved].
(vi)
Each of the Document Custodian and the Collateral Administrator may
assume the genuineness of any Related Document it may receive and the genuineness and
due authority of any signatures appearing thereon, and shall be entitled to assume that each
such Related Document it may receive is what it purports to be. If an original “security”
or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC,
respectively, is or shall be or become available with respect to any Collateral Loan to be
held by the Document Custodian under this Agreement, it shall be the sole responsibility
of the Borrower to make or cause delivery thereof to the Document Custodian, and the
Document Custodian shall not be under any obligation at any time to determine whether
any such original security or instrument has been or is required to be issued or made
available in respect of any Collateral Loan or to compel or cause delivery thereof to the
Document Custodian.
(vii)
With respect to each Related Document which has been or will be
Delivered to the Document Custodian or the Collateral Administrator, as applicable, the
Document Custodian is acting exclusively as the custodian of the Secured Parties, and has
no instructions to hold any Related Document for the benefit of any Person other than the
Secured Parties and undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. In so taking and retaining custody of any Related
Documents, the Collateral Administrator shall be deemed to be acting for the purpose of
perfecting the Collateral Agent’s security interest therein under the UCC. Except upon
compliance with the provisions of Section 13.04, no Related Document shall be released
from the possession of the Document Custodian or the Collateral Administrator.
(viii)
Each of the Document Custodian and the Collateral Administrator shall
accept only written instructions of a Responsible Officer of the Borrower or the Collateral
Manager concerning the use, handling and disposition of any Related Documents
Delivered to it.
(ix)
With respect to the Related Documents, (i) any original promissory notes
or original assignment agreements shall be delivered to the Document Custodian and (ii)
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all other documents shall be delivered to the Collateral Administrator solely in electronic
form, in each case for safekeeping pursuant to the terms of this Agreement. Except as
explicitly set forth in this Agreement, neither the Document Custodian nor the Collateral
Administrator shall have any obligation to review the Related Documents delivered to it.
Notwithstanding any language to the contrary herein, except as expressly set forth herein,
neither the Document Custodian nor the Collateral Administrator shall make no
representations as to, and neither shall not be responsible to verify, (i) the validity, legality,
ownership, title, perfection, priority, enforceability, due authorization, recordability,
sufficiency for any purpose, or genuineness of any of the Related
Documents, (ii) whether the text of any assignment or endorsement is in proper or
recordable form, (iii) whether any document has been recorded in accordance with the
requirements of any applicable jurisdiction, to independently determine that any document
has actually been filed or recorded in the appropriate office (iv) that any document is other
than what it purports to be on its face or (v) the collectibility, insurability, effectiveness or
suitability of any such Collateral Obligation.
(x)
Each of the Document Custodian and the Collateral Administrator agree
that, with respect to any Related Document at any time or times in its possession or held
in its name, the Document Custodian or the Collateral Administrator, as applicable, shall
be the agent and custodian of the Collateral Agent, for the benefit of the Secured Parties,
for purposes of perfecting (to the extent not otherwise perfected) the Collateral Agent’s
security interest in the Collateral and for the purpose of ensuring that such security interest
is entitled to first priority status under the UCC.
(xi)
If, in performing its duties under this Agreement, the Document Custodian
is required to decide between alternative courses of action, the Document Custodian may
request written instructions from the Borrower or the Collateral Manager as to the course
of action desired by it. If the Document Custodian does not receive such instructions
within five Business Days after it has requested them, the Document Custodian may, but
shall be under no duty to, take or refrain from taking any such courses of action. The
Document Custodian shall act in accordance with instructions received after such five-
Business Day period except to the extent it has already taken, or committed itself to take,
action inconsistent with such instructions. The Document Custodian shall be entitled to
rely on the advice of legal counsel and independent accountants in performing its duties
hereunder and shall be deemed to have acted in good faith if it acts in accordance with
such advice.
Section 13.03. Merger or Consolidation. Any Person (i) into which the Document
Custodian may be merged or consolidated, (ii) that may result from any merger or consolidation
to which the Document Custodian shall be a party, or (iii) that may succeed to the properties and
assets of the Document Custodian substantially as a whole, which Person in any of the foregoing
cases shall be the successor to the Document Custodian under this Agreement without further act
of any of the parties to this Agreement.
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Section 13.04. Document Custodian Compensation. As compensation for its Document
Custodian activities hereunder, the Document Custodian shall be entitled to fees pursuant to the
Collateral Agent and Collateral Administrator Fee Letter. The Document Custodian’s entitlement
to receive the fees under the Collateral Agent and Collateral Administrator Fee Letter shall cease
on the earlier to occur of: (i) its removal as Document Custodian pursuant to Section
13.05 or (ii) the termination of this Agreement. Upon termination of this Agreement or earlier
resignation or removal of the Document Custodian, the Borrower shall pay to the Document
Custodian such compensation, and shall likewise reimburse the Document Custodian for its costs,
expenses and disbursements, as may be due as of the date of such termination, resignation or
removal, as the case may be. All indemnifications in favor of the Document Custodian under this
Agreement shall survive the termination of this Agreement, or any resignation or removal of the
Document Custodian. The Borrower agrees to pay or reimburse to the Document Custodian
upon its request from time to time all costs, disbursements, advances, and expenses (including
reasonable fees and expenses of legal counsel) incurred, in connection with the preparation or
execution of this Agreement, or in connection with the transactions contemplated hereby or
performance by the Document Custodian of its duties and services under this Agreement
(including costs and expenses of any action deemed necessary by the Document Custodian to
collect any amounts owing to it under this Agreement) in accordance with the Priority of
Payments.
Section 13.06.Limitation on Liability.
(a) The Document Custodian may conclusively rely on and shall be fully protected in
acting upon any certificate, instrument, opinion, notice, letter, telegram or other document
delivered to it and that in good faith it reasonably believes to be genuine and that has been signed
by the proper Person. The Document Custodian may rely conclusively on and shall be fully
protected in acting upon the written instructions of any Responsible Officer of the Administrative
Agent.
(b)
The Document Custodian may consult counsel satisfactory to it and the advice or
opinion of such counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
(c)
The Document Custodian shall not be liable for any error of judgment, or for any
act done or step taken or omitted by it, in good faith, or for any mistakes of fact or law, or for
anything that it may do or refrain from doing in connection herewith except, notwithstanding
anything to the contrary contained herein, in the case of its willful misconduct or grossly negligent
performance or omission of its duties and in the case of its grossly negligent performance of its
duties in taking and retaining custody of the Related Documents.
(d)
The Document Custodian makes no warranty or representation and shall have no
responsibility to any Secured Party or any Person for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement or the other Facility
Documents, and will not be required to and will not make any representations as to
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Section 13.05. Document Custodian Removal. The Document Custodian may be
removed, with or without cause, by the Administrative Agent, with the consent of the Borrower
(if such removal is without cause) so long as no Event of Default has occurred and is continuing,
by at least 30 days’ notice given in writing to the Document Custodian (the “Document Custodian
Termination Notice”); provided that notwithstanding its receipt of a Document Custodian
Termination Notice, the Document Custodian shall continue to act in such capacity (and shall
continue to be entitled to receive fees) until a successor Document Custodian has been appointed,
has agreed to act as Document Custodian hereunder, and has received all Related Documents held
by the previous Document Custodian. If a successor Document Custodian is not appointed within
thirty days of the Document Custodian’s receipt of notice of removal, the Document Custodian
may petition a court of competent jurisdiction for the appointment of a successor and shall be
indemnified pursuant to Section 13.06(p) for the reasonable costs and expenses thereof.
the validity or value of any of the Collateral. The Document Custodian shall not be obligated to
take any legal action hereunder that might in its judgment involve any expense or liability unless
it has been furnished with an indemnity reasonably satisfactory to it.
(e)
The Document Custodian shall have no duties or responsibilities except such
duties and responsibilities as are specifically set forth in this Agreement and no covenants or
obligations shall be implied in this Agreement against the Document Custodian.
(f)
The Document Custodian shall not be required to expend or risk its own funds in
the performance of its duties hereunder or take any action that could in its judgment cause it to
incur any cost, expenses or liability, unless it is provided indemnity acceptable to it against any
such expenditure, risk, costs, expense or liability.
(g) It is expressly agreed and acknowledged that the Document Custodian is not
guaranteeing performance of or assuming any liability for the obligations of the other parties
hereto or any parties to the Collateral.
(h)
Without prejudice to the generality of the foregoing, the Document Custodian shall
be without liability to the Borrower, Collateral Manager, the Administrative Agent or any other
(i)
In the event that (i) the Borrower, Collateral Agent, the Collateral Administrator,
the Collateral Manager, the Administrative Agent, Lenders or Document Custodian shall be
served by a third party with any type of levy, attachment, writ or court order with respect to any
Collateral Loan or Related Documents or (ii) a third party shall institute any court proceeding by
which any Collateral Loan or Related Document shall be required to be delivered otherwise than
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Person for any damage or loss resulting from or caused by events or circumstances beyond the
Document Custodian’s reasonable control, including, but not limited to, nationalization,
expropriation, currency restrictions, the interruption, disruption or suspension of the normal
procedures and practices of any securities market, power, mechanical, communications or other
technological failures or interruptions, computer viruses or the like, fires, floods, earthquakes or
other natural disasters, civil and military disturbance, acts of war or terrorism, riots, revolution,
acts of God, work stoppages, strikes, national disasters of any kind, or other similar events or acts;
errors by the Borrower, the Collateral Manager, Collateral Administrator or the Administrative
Agent (including any Responsible Officer of any thereof) in its instructions to the Document
Custodian; or changes in Applicable Law.
in accordance with the provisions of this Agreement, the Person receiving such service shall
promptly deliver or cause to be delivered to the other parties to this Agreement copies of all court
papers, orders, documents and other materials concerning such proceedings. The Document
Custodian or the Collateral Administrator, as applicable, shall, to the extent permitted by Law,
continue to hold and maintain all the Related Documents that are the subject of such proceedings
pending a final, non-appealable order of a court of competent jurisdiction permitting or directing
disposition thereof. Upon final determination of such court, the Document Custodian or the
Collateral Administrator, as applicable, shall dispose of such Related Documents as directed by
the Administrative Agent in writing, which shall give a direction consistent with such
determination. Expenses of the Document Custodian and the Collateral Administrator incurred as
a result of such proceedings shall be borne by the Borrower.
(j)
In addition to, and without limiting, the rights, protections, indemnities and
immunities afforded to the Document Custodian herein, the Document Custodian shall have the
same rights, protections, indemnities and immunities as are offered the Collateral Agent under
this Agreement.
(k)
In no event shall the Document Custodian be liable for special, indirect, punitive
or consequential losses or damages of any kind whatsoever (including but not limited to lost
profits) even if the Document Custodian has been advised of the likelihood of such damages and
regardless of the form of such action.
(l)
Notwithstanding any provision to the contrary elsewhere in the Facility
Documents, neither the Document Custodian nor the Collateral Administrator shall have any
fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no
implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the
other Facility Documents or otherwise exist against the Document Custodian or the Collateral
Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and
stipulated by the other parties hereto that neither the Document Custodian nor the Collateral
Administrator shall be required to exercise any discretion hereunder and shall have no investment
or management responsibility.
(m)
In case any reasonable question arises as to its duties hereunder, the Document
Custodian may, except during the continuance of an Event of Default or after the Final Maturity
Date, request instructions from the Collateral Manager and may, during the continuance of an
Event of Default or after the Final Maturity Date, request instructions from the Administrative
Agent, and shall be entitled at all times to refrain from taking any action unless it has received
instructions from the Collateral Manager or the Administrative Agent, as applicable. The
Document Custodian shall in all events have no liability, risk or cost for any action taken pursuant
to and in compliance with the instruction of the Administrative Agent, the Collateral Manager or
the Borrower.
(n)
The Document Custodian shall have no responsibility and shall have no liability
for (i) preparing, recording, filing, re-recording or re-filing any financing statement, continuation
statement, document, instrument or other notice in any public office at any time or times, (ii) the
correctness of any such financing statement, continuation statement, document or instrument or
other such notice, (iii) taking any action to perfect or maintain the perfection of any security
interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such lien or
security interest.
(o)
to receive a
The parties acknowledge and agree that the Document Custodian is not expecting
significant number of original Related Documents. In the event the Document
Custodian receives an amount in excess of its expectation, as determined in its sole discretion, the
Document Custodian may either appoint a sub-agent custodian, or require the Borrower to enter
into a document custody agreement directly with a separate custodian, in respect of such original
Related Documents.
(p)
The Borrower shall, and hereby agrees to, reimburse, indemnify and hold harmless
the Document Custodian and its affiliates, directors, officers, shareholders, agents and
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employees for and from any and all Liabilities in respect of, or arising from any acts or omissions
performed or omitted by the Document Custodian, its affiliates, directors, officers, shareholders,
agents or employees pursuant to or in connection with the terms of this Agreement, or in the
performance or observance of its duties or obligations under this Agreement; provided the same
are in good faith and without willful misfeasance, fraud and/or gross negligence on the part of the
Document Custodian or without reckless disregard of its duties hereunder. The obligations of the
Borrower under this Section 13.06(p) shall survive the termination of this Agreement and any
earlier resignation or removal of the Document Custodian.
Section 13.08.Release of Related Documents.
(a)
Release for Servicing. From time to time and as appropriate for the enforcement or
servicing of any of the Collateral, the Document Custodian and the Collateral Administrator are
hereby authorized (unless and until such authorization is revoked by the Administrative Agent) to,
and shall, upon written receipt from the Collateral Manager of a request for release of documents
and receipt in the form annexed hereto as Exhibit E, release to the Collateral Manager within two
Business Days of receipt of such request, the applicable Related Documents delivered to it or the
documents set forth in such request and receipt to the Collateral Manager. All documents so
(b)
Release for Payment. Upon receipt by the Document Custodian or the Collateral
Administrator, as applicable, of the Collateral Manager’s request for release of documents and
receipt in the form annexed hereto as Exhibit E (which certification shall include a statement to
the effect that all amounts received in connection with such payment or repurchase have been
credited to the Collection Account as provided in this Agreement), the Document Custodian or
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Section 13.07. Resignation of the Document Custodian. The Document Custodian shall
not resign from the obligations and duties hereby imposed on it except upon (a) at least 90 days'
written notice to the Borrower, the Collateral Manager, the Administrative Agent and each
Lender, or (b) the Document Custodian’s determination that (i) the performance of its duties
hereunder is or becomes impermissible under Applicable Law and (ii) there is no reasonable
action that the Document Custodian could take to make the performance of its duties hereunder
permissible under Applicable Law. No such resignation shall become effective until a successor
Document Custodian shall have assumed the responsibilities and obligations of the Document
Custodian hereunder subject to Section 13.01(b).
released to the Collateral Manager shall be held by the Collateral Manager in trust for the benefit
of the Administrative Agent in accordance with the terms of this Agreement. The Collateral
Manager shall return to the Document Custodian or the Collateral Administrator, as applicable,
the Related Documents held by such party or other such documents (i) promptly upon the request
of the Administrative Agent, or (ii) when the Collateral Manager’s need therefor in connection
with such enforcement or servicing no longer exists, unless the Collateral Loan shall be liquidated
or sold, in which case, upon receipt of an additional request for release of documents and receipt
certifying such liquidation or sale from the Collateral Manager to the Document Custodian and
the Collateral Administrator, as applicable, in the form annexed hereto as Exhibit E, the Collateral
Manager’s request and receipt submitted pursuant to the first sentence of this subsection shall be
released by the Document Custodian and the Collateral Administrator, as applicable, to the
Collateral Manager.
the Collateral Administrator, as applicable, shall promptly release the applicable Related
Documents to the Collateral Manager.
Section 13.10.Access to Certain Documentation and Information Regarding the
Collateral; Audits.
(b)
Without limiting the foregoing provisions of Section 13.10(a), from time to time
on request of the Administrative Agent and upon reasonable prior written notice to the Document
Custodian or the Collateral Administrator, as applicable, each of the Document Custodian and
the Collateral Administrator shall permit certified public accountants or other
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Section 13.09. Return of Related Documents. The Borrower may, with the prior written
consent of the Administrative Agent (such consent not to be unreasonably withheld), require that
the Document Custodian or the Collateral Administrator, as applicable, return each Related
Document (as applicable) held by it, respectively (a) delivered to the Document Custodian or the
Collateral Administrator, as applicable, in error, (b) as to which the Lien on the underlying assets
securing such related Collateral Loan has been so released pursuant to Section 7.02, (c) that has
been the subject of a discretionary sale or any sale of loan pursuant to Section 10.01 or substitution
pursuant to Section 10.03 or (d) that is required to be redelivered to the Borrower in connection
with the termination of this Agreement, in each case by submitting to the Document Custodian or
the Collateral Administrator, as applicable, and the Administrative Agent a written request in the
form annexed hereto as Exhibit E (signed by both the Borrower and the Administrative Agent)
specifying the Collateral to be so returned and reciting that the conditions to such release have
been met (and specifying the Section or Sections of this Agreement being relied upon for such
release). The Document Custodian or the Collateral Administrator, as applicable, shall upon its
receipt of each such request for return executed by the Borrower and the Administrative Agent
promptly, but in any event within two Business Days, return the Related Documents so requested
to the Borrower.
(a)The Collateral Manager, the Collateral Administrator and the Document
Custodian, as applicable, shall provide to the Administrative Agent access to the Related
Documents and all other documentation regarding the Collateral in the possession of or under the
control of the Document Custodian or the Collateral Administrator, as applicable, including in
such cases where the Administrative Agent is required in connection with the enforcement of the
rights or interests of the Secured Parties, or by Applicable Law, to review such documentation,
such access being afforded without charge (but, with respect to the Document Custodian and the
Collateral Administrator, at the expense of the Borrower) but only (i) upon two Business Days’
prior written request, (ii) during normal business hours and (iii) subject to the Collateral
Manager’s, the Collateral Administrator’s and Document Custodian’s normal security and
confidentiality procedures; provided that the Administrative Agent may, and shall upon request
of any Lender, permit each Lender to be included on any such review, and shall use reasonably
commercial efforts to schedule any review on a day when Lenders desiring to participate in such
review may be included. From time to time at the discretion of the Administrative Agent, the
Administrative Agent may review the Collateral Manager’s collection and administration of the
Collateral in order to assess compliance by the Collateral Manager with Article XI and may
conduct an audit of the Collateral, and Related Documents in conjunction with such a review.
Such review shall be reasonable in scope and shall be completed in a reasonable period of time.
independent auditors acceptable to the Administrative Agent during normal business hours to
conduct a review of the Related Documents held by such party and all other documentation
regarding the Collateral in the possession of or under the control of the Document Custodian or
the Collateral Administrator, as applicable. Up to two such reviews per fiscal year shall be at the
expense of the Borrower and additional reviews in a fiscal year shall be at the expense of the
requesting Lender(s); provided that, after the occurrence and during the continuance of an Event
of Default, any such reviews, regardless of frequency, shall be at the expense of the Borrower.
Section 13.11.Representations and Warranties of the Document Custodian.
Document Custodian represents and warrants as follows:
The
(a)
Organization; Power and Authority. It is a duly organized and validly existing
national banking association in good standing under the Laws of the United States. It has full
corporate power, authority and legal right to execute, deliver and perform its obligations as
Document Custodian under this Agreement.
(b)
Due Authorization. The execution and delivery of this Agreement and the
consummation of the transactions provided for herein have been duly authorized by all necessary
association action on its part, either in its individual capacity or as Document Custodian, as the
case may be.
(c)
No Conflict. The execution and delivery of this Agreement, the performance of
the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with,
result in any breach of its articles of incorporation or bylaws.
(d)
No Violation. The execution and delivery of this Agreement, the performance of
the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with
or violate, in any material respect, any Applicable Law as to the Document Custodian.
(e) All Consents Required. All approvals, authorizations, consents, orders or other
actions of any Governmental Authority applicable to the Document Custodian, required in
connection with the execution and delivery of this Agreement, the performance by the Document
Custodian of the transactions contemplated hereby and the fulfillment by the Document Custodian
of the terms hereof have been obtained.
(f)
Validity. The Agreement constitutes the legal, valid and binding obligation of the
Document Custodian, enforceable against the Document Custodian in accordance with its terms,
except as such enforceability may be limited by applicable Bankruptcy Code and general
principles of equity (whether considered in a suit at law or in equity).
ARTICLE XIV
THE CUSTODIAN
Section 14.01.Designation of Custodian.
(a)
Initial Custodian. The role of Custodian with respect to the Collateral Loans shall
be conducted by the Person designated as Custodian hereunder from time to time in accordance
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with this Section 14.01. Until the Administrative Agent shall give to Citibank a Custodian
Termination Notice, Citibank is hereby appointed as, and hereby accepts such appointment and
agrees to perform the duties and obligations of, Custodian pursuant to the terms hereof.
(b)
Successor Custodian. Upon the Custodian’s receipt of a Custodian Termination
Notice from the Administrative Agent of the designation of a successor Custodian pursuant to the
provisions of Section 14.05, the Custodian agrees that it will terminate its activities as Custodian
hereunder. Upon the resignation of the Custodian, the Administrative Agent shall appoint a
successor Custodian and if it does not do so within thirty days of the Custodian’s resignation, the
Custodian may petition a court of competent jurisdiction for the appointment of a successor.
Section 14.02.Duties of Custodian.
(a)
Appointment.Each of the Borrower and the Administrative Agent hereby
designate and appoint the Custodian to act as its agent and hereby authorizes the Custodian to take
such actions on its behalf and to exercise such powers and perform such duties as are expressly
granted to the Custodian by this Agreement. The Custodian hereby accepts such agency
appointment to act as Custodian pursuant to the terms of this Agreement, until its resignation or
removal as Custodian pursuant to the terms hereof. The Custodian shall have no duties hereunder
except for those expressly contemplated by this Agreement to be performed by the Custodian. By
entering into, or performing its duties under, this Agreement, the Custodian shall not be deemed
to assume any obligations or liabilities of the Borrower or the Collateral Manager under this
Agreement, and nothing herein contained shall be deemed to release, terminate, discharge, limit,
reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or
liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any
other Facility Document.
Section 14.03. Merger or Consolidation. Any Person (i) into which the Custodian may
be merged or consolidated, (ii) that may result from any merger or consolidation to which the
Custodian shall be a party, or (iii) that may succeed to the properties and assets of the Custodian
substantially as a whole, which Person in any of the foregoing cases shall be the successor to the
Custodian under this Agreement without further act of any of the parties to this Agreement.
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Section 14.04. Custodian Compensation. As compensation for its Custodian activities
hereunder, the Custodian shall be entitled to fees pursuant to the Collateral Agent and Collateral
Administrator Fee Letter. The Custodian’s entitlement to receive the fees under the Collateral
Agent and Collateral Administrator Fee Letter shall cease on the earlier to occur of: (i) its removal
as Custodian pursuant to Section 14.05 or (ii) the termination of this Agreement. Upon termination
of this Agreement or earlier resignation or removal of the Custodian, the Borrower shall pay to
the Custodian such compensation, and shall likewise reimburse the Custodian for its costs,
expenses and disbursements, as may be due as of the date of such termination, resignation or
removal, as the case may be. All indemnifications in favor of the Custodian under this Agreement
shall survive the termination of this Agreement, or any resignation or removal of the Custodian.
The Borrower agrees to pay or reimburse to the Custodian upon its request from time to time all
costs, disbursements, advances, and expenses (including reasonable fees and expenses of legal
counsel) incurred, in connection with the preparation or execution of this Agreement, or
in connection with the transactions contemplated hereby or performance by the Custodian of its
duties and services under this Agreement (including costs and expenses of any action deemed
necessary by the Custodian to collect any amounts owing to it under this Agreement) in
accordance with the Priority of Payments.
Section 14.06.Limitation on Liability.
(a)
The Custodian may conclusively rely on and shall be fully protected in acting upon
any certificate, instrument, opinion, notice, letter, telegram or other document delivered to it and
that in good faith it reasonably believes to be genuine and that has been signed by the proper
Person. The Custodian may rely conclusively on and shall be fully protected in acting upon the
written instructions of any designated officer of the Administrative Agent.
(b)
The Custodian may consult counsel satisfactory to it and the advice or opinion of
such counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(c)
The Custodian shall not be liable for any error of judgment, or for any act done or
step taken or omitted by it, in good faith, or for any mistakes of fact or law, or for anything that it
may do or refrain from doing in connection herewith except, notwithstanding anything to the
contrary contained herein, in the case of its willful misconduct or grossly negligent performance
or omission of its duties and in the case of its grossly negligent performance of its duties in taking
and retaining custody of the Related Documents.
(d)
The Custodian makes no warranty or representation and shall have no
responsibility to any Secured Party or any Person for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement or the other Facility
Documents, and will not be required to and will not make any representations as to the validity or
value of any of the Collateral. The Custodian shall not be obligated to take any legal action
hereunder that might in its judgment involve any expense or liability unless it has been furnished
with an indemnity reasonably satisfactory to it.
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Section 14.05. Custodian Removal. The Custodian may be removed, with or without
cause, by the Administrative Agent, with the consent of the Borrower (if such removal is without
cause) so long as no Event of Default has occurred and is continuing, by at least 30 days’ notice
given in writing to the Custodian (the “Custodian Termination Notice”); provided that
notwithstanding its receipt of a Custodian Termination Notice, the Custodian shall continue to act
in such capacity (and shall continue to be entitled to receive fees) until a successor Custodian has
been appointed, has agreed to act as Custodian hereunder, and has received all Related Documents
held by the previous Custodian. If a successor Custodian is not appointed within thirty days of the
Custodian’s receipt of notice of removal, the Custodian may petition a court of competent
jurisdiction for the appointment of a successor and shall be indemnified pursuant to Section
14.06(o) for the reasonable costs and expenses thereof.
(e)
The Custodian shall have no duties or responsibilities except such duties and
responsibilities as are specifically set forth in this Agreement and no covenants or obligations
shall be implied in this Agreement against the Custodian.
(f)
The Custodian shall not be required to expend or risk its own funds in the
performance of its duties hereunder or take any action that could in its judgment cause it to incur
any cost, expenses or liability, unless it is provided indemnity acceptable to it against any such
expenditure, risk, costs, expense or liability.
(g)
It is expressly agreed and acknowledged that the Custodian is not guaranteeing
performance of or assuming any liability for the obligations of the other parties hereto or any
parties to the Collateral.
(h)
Without prejudice to the generality of the foregoing, the Custodian shall be without
liability to the Borrower, Collateral Manager, the Administrative Agent or any other Person for
any damage or loss resulting from or caused by events or circumstances beyond the Custodian’s
(i)
In the event that (i) the Borrower, Collateral Agent, the Collateral Administrator,
the Collateral Manager, the Administrative Agent, Lenders or Custodian shall be served by a third
party with any type of levy, attachment, writ or court order with respect to any Collateral Loan or
(j)
In addition to, and without limiting, the rights, protections, indemnities and
immunities afforded to the Custodian herein, the Custodian shall have the same rights, protections,
indemnities and immunities as are offered the Collateral Agent under this Agreement.
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reasonable control, including nationalization, expropriation, currency restrictions, the
interruption, disruption or suspension of the normal procedures and practices of any securities
market, power, mechanical, communications or other technological failures or interruptions,
computer viruses or the like, fires, floods, earthquakes or other natural disasters, civil and military
disturbance, acts of war or terrorism, riots, revolution, acts of God, work stoppages, strikes,
national disasters of any kind, or other similar events or acts; errors by the Borrower, the Collateral
Manager, Collateral Administrator or the Administrative Agent (including any Responsible
Officer of any thereof) in its instructions to the Custodian; or changes in Applicable Law.
Related Documents or (ii) a third party shall institute any court proceeding by which any Collateral
Loan or Related Document shall be required to be delivered otherwise than in accordance with the
provisions of this Agreement, the Person receiving such service shall promptly deliver or cause to
be delivered to the other parties to this Agreement copies of all court papers, orders, documents
and other materials concerning such proceedings. The Custodian shall, to the extent permitted by
Law, continue to hold and maintain all the Related Documents that are the subject of such
proceedings pending a final, non-appealable order of a court of competent jurisdiction permitting
or directing disposition thereof. Upon final determination of such court, the Custodian shall
dispose of such Related Documents as directed by Administrative Agent in writing, which shall
give a direction consistent with such determination. Expenses of the Custodian incurred as a result
of such proceedings shall be borne by the Borrower.
(k)
In no event shall the Custodian be liable for special, exemplary, indirect, punitive
or consequential losses or damages of any kind whatsoever (including but not limited to lost
profits) even if the Custodian has been advised of the likelihood of such damages and regardless
of the form of such action.
(l)
Notwithstanding any provision to the contrary elsewhere in the Facility
Documents, the Custodian shall not have any fiduciary relationship with any party hereto or any
Secured Party in its capacity as such, and no implied covenants, functions, obligations or
responsibilities shall be read into this Agreement, the other Facility Documents or otherwise exist
against the Custodian. Without limiting the generality of the foregoing, it is hereby expressly
agreed and stipulated by the other parties hereto that the Custodian shall not be required to exercise
any discretion hereunder and shall have no investment or management responsibility.
(m)
In case any reasonable question arises as to its duties hereunder, the Custodian
may, except during the continuance of an Event of Default or after the Final Maturity Date, request
instructions from the Collateral Manager and may, during the continuance of an Event of Default
or after the Final Maturity Date, request instructions from the Administrative Agent, and shall be
entitled at all times to refrain from taking any action unless it has received instructions from the
Collateral Manager or the Administrative Agent, as applicable. The Custodian shall in all events
have no liability, risk or cost for any action taken pursuant to and in compliance with the
instruction of the Administrative Agent, the Collateral Manager or the Borrower.
(n) The Custodian shall have no responsibility and shall have no liability for (i)
preparing, recording, filing, re-recording or re-filing any financing statement, continuation
statement, document, instrument or other notice in any public office at any time or times, (ii) the
correctness of any such financing statement, continuation statement, document or instrument or
other such notice, (iii) taking any action to perfect or maintain the perfection of any security
interest granted to it hereunder or otherwise or (iv) the validity or perfection of any such lien or
security interest.
(o)
The Borrower shall, and hereby agrees to, reimburse, indemnify and hold harmless
the Custodian and its affiliates, directors, officers, shareholders, agents and employees for and
from any and all Liabilities in respect of, or arising from any acts or omissions performed or
omitted by the Custodian, its affiliates, directors, officers, shareholders, agents or employees
pursuant to or in connection with the terms of this Agreement, or in the performance or observance
of its duties or obligations under this Agreement; provided the same are in good faith and without
willful misfeasance, fraud and/or gross negligence on the part of the Custodian or without reckless
disregard of its duties hereunder. The obligations of the Borrower under this Section 14.06(0)
shall survive the termination of this Agreement and any earlier resignation or removal of the
Custodian.
Section 14.07. Resignation of the Custodian. The Custodian shall not resign from the
obligations and duties hereby imposed on it except upon (a) at least 90 days’ written notice to the
Borrower, the Collateral Manager, the Administrative Agent and each Lender, or (b) the
Custodian’s determination that (i) the performance of its duties hereunder is or becomes
impermissible under Applicable Law and (ii) there is no reasonable action that the Custodian
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could take to make the performance of its duties hereunder permissible under Applicable Law.
No such resignation shall become effective until a successor Custodian shall have assumed the
responsibilities and obligations of the Custodian hereunder subject to Section 14.01(b).
Section 14.08.Access to Certain Documentation and Information Regarding the
Collateral; Audits.
(a)
The Collateral Manager and the Custodian shall provide to the Administrative
Agent access to the Related Documents and all other documentation regarding the Collateral in
(b)
Without limiting the foregoing provisions of Section 14.08(a), from time to time
on request of the Administrative Agent and upon reasonable prior written notice to the Custodian,
the Custodian shall permit certified public accountants or other independent auditors acceptable
to the Administrative Agent during normal business hours to conduct a review of the Related
Documents and all other documentation regarding the Collateral in the possession of or under the
control of the Custodian. Up to two such reviews per fiscal year shall be at the expense of the
Borrower and additional reviews in a fiscal year shall be at the expense of the requesting
Lender(s); provided that, after the occurrence and during the continuance of an Event of Default,
any such reviews, regardless of frequency, shall be at the expense of the Borrower.
Section 14.09.Representations and Warranties of the Custodian.
represents and warrants as follows:
The Custodian
(a)
Organization; Power and Authority. It is a duly organized and validly existing
national banking association in good standing under the Laws of the United States. It has full
corporate power, authority and legal right to execute, deliver and perform its obligations as
Custodian under this Agreement.
(b)
Due Authorization. The execution and delivery of this Agreement and the
consummation of the transactions provided for herein have been duly authorized by all necessary
association action on its part, either in its individual capacity or as Custodian, as the case may be.
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the possession of or under the control of the Custodian including in such cases where the
Administrative Agent is required in connection with the enforcement of the rights or interests of
the Secured Parties, or by Applicable Law, to review such documentation, such access being
afforded without charge (but, with respect to the Custodian, at the expense of the Borrower) but
only (i) upon two Business Days’ prior written request, (ii) during normal business hours and
(iii) subject to the Collateral Manager’s and Custodian’s normal security and confidentiality
procedures; provided that the Administrative Agent may, and shall upon request of any Lender,
permit each Lender to be included on any such review, and shall use reasonably commercial
efforts to schedule any review on a day when Lenders desiring to participate in such review may
be included. From time to time at the discretion of the Administrative Agent, the Administrative
Agent may review the Collateral Manager’s collection and administration of the Collateral in
order to assess compliance by the Collateral Manager with Article XI and may conduct an audit
of the Collateral, and Related Documents in conjunction with such a review. Such review shall
be reasonable in scope and shall be completed in a reasonable period of time.
(c)
No Conflict. The execution and delivery of this Agreement, the performance of
the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with,
result in any breach of its articles of incorporation or bylaws.
(d)
No Violation. The execution and delivery of this Agreement, the performance of
the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with
or violate, in any material respect, any Applicable Law as to the Custodian.
(e)
All Consents Required. All approvals, authorizations, consents, orders or other
actions of any Governmental Authority applicable to the Custodian, required in connection with
the execution and delivery of this Agreement, the performance by the Custodian of the
transactions contemplated hereby and the fulfillment by the Custodian of the terms hereof have
been obtained.
(f) Validity. The Agreement constitutes the legal, valid and binding obligation of the
Custodian, enforceable against the Custodian in accordance with its terms, except as such
enforceability may be limited by applicable Bankruptcy Code and general principles of equity
(whether considered in a suit at law or in equity).
ARTICLE XV
THE COLLATERAL ADMINISTRATOR
(b)
The Collateral Manager and the Borrower shall cooperate with the Collateral
Administrator in connection with the matters described herein, including the confirmation by the
Collateral Administrator of the calculations contained in the Monthly Reports or otherwise
reasonably requested hereunder. Without limiting the generality of the foregoing, the Collateral
Manager shall advise in a timely manner the Collateral Administrator of the results of any
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Section 15.01. Powers and Duties of Collateral Administrator. (a) Virtus Group, LP shall
act as Collateral Administrator pursuant to the terms of this Agreement, until Virtus Group, LP’s
resignation or removal as Collateral Administrator pursuant to Section 15.04 hereof. In such
capacity, the Collateral Administrator shall assist the Borrower and the Collateral Manager by
providing to the Borrower and the Collateral Manager (and, where applicable, the Borrower’s
Independent Accountants) certain reports, calculations and other data (as may be mutually agreed
upon by the parties hereto), based upon information and data received from the Borrower and/or
Collateral Manager, which reports, calculations and other data the Borrower or the Collateral
Manager on its behalf, and/or the Collateral Administrator is required to prepare and deliver (or
which are necessary to be performed in order that certain reports and calculations can be
performed as required) under Section 8.06. Virtus Group, LP’s duties and authority to act as
Collateral Administrator hereunder are limited to the duties and authority specifically set forth in
this Agreement. By entering into, or performing its duties under, this Agreement, the Collateral
Administrator shall not be deemed to assume any obligations or liabilities of the Borrower or the
Collateral Manager under this Agreement, and nothing herein contained shall be deemed to
release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any
respect the duties, obligations or liabilities of the Borrower or the Collateral Manager under or
pursuant to this Agreement or any other Facility Document.
determinations required or permitted to be made by it or the Borrower under this Agreement and
supply the Collateral Administrator with such other information (in a mutually agreeable format)
as is maintained by or on behalf of the Collateral Manager that the Collateral Administrator may
from time to time reasonably request with respect to the Collateral and reasonably needed to
perform its obligations hereunder or required to permit the Collateral Administrator to perform
its obligations hereunder (including the Collateral Manager’s determinations of Market Value,
Aggregate Collateral Balance, Concentration Limitations and the Borrowing Base, as applicable)
and any other information that may be reasonably required under this Agreement with respect to
a Collateral Loan (including as to its designation as a Defaulted Collateral Loan, Ineligible
Collateral Loan, Equity Security or Credit Improved Loan).
(c)
If, in performing its duties under this Agreement, the Collateral Administrator is
required to decide between alternative courses of action, the Collateral Administrator may request
written instructions from the Borrower or the Collateral Manager as to the course of action desired
by it. If the Collateral Administrator does not receive such instructions within five Business Days
after it has requested them, the Collateral Administrator may, but shall be under no duty to, take
or refrain from taking any such courses of action. The Collateral Administrator shall act in
accordance with instructions received after such five-Business Day period except to the extent it
has already taken, or committed itself to take, action inconsistent with such instructions. The
Collateral Administrator shall be entitled to rely on the advice of legal counsel and independent
accountants in performing its duties hereunder and shall be deemed to have acted in good faith if
it acts in accordance with such advice.
(d)
Nothing herein shall prevent the Collateral Administrator or any of its Affiliates
from engaging in other businesses or from rendering services of any kind to any Person.
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Section 15.02. Compensation. The Borrower agrees to pay, and the Collateral
Administrator shall be entitled to receive, compensation for the Collateral Administrator’s
performance of the duties called for herein as provided in the Collateral Agent and Collateral
Administrator Fee Letter. The Borrower agrees to pay or reimburse to the Collateral Administrator
upon its request from time to time all reasonable and documented out-of-pocket costs,
disbursements, advances, and expenses (including reasonable fees and expenses of legal counsel)
incurred in connection with the preparation or execution of this Agreement, or in connection with
the transactions contemplated hereby or the administration of this Agreement or performance by
the Collateral Administrator of its duties and services under this Agreement (including costs and
expenses of any action deemed necessary by the Collateral Administrator to collect any amounts
owing to it under this Agreement). All payments hereunder, including, but not limited to
indemnities, shall be paid in accordance with the Priority of Payments.
Section 15.03. Limitation of Responsibility of the Collateral Administrator;
Indemnification. (a) The Collateral Administrator will have no responsibility under this
Agreement other than to render the services expressly called for hereunder in good faith and
without willful misfeasance or gross negligence. The Collateral Administrator shall incur no
liability to anyone in acting upon any signature, instrument, statement, notice, resolution, request,
direction, consent, order, certificate, report, opinion, bond or other document or paper reasonably
believed by it to be genuine and reasonably believed by it to be signed by the proper Person. The
Collateral Administrator may exercise any of its rights or powers hereunder or
perform any of its duties hereunder either directly or by or through agents or attorneys, and the
Collateral Administrator shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed hereunder with due care by it.
Neither the Collateral
Collateral Administrator’s own willful misconduct or gross negligence.
The Collateral
Administrator shall not be liable for failing to perform or delay in performing its specified duties
hereunder which results from or is caused by a failure or delay on the part of the Borrower, the
Collateral Manager or another Person in furnishing necessary, timely and accurate information to
the Collateral Administrator. The duties and obligations of the Collateral Administrator and its
employees or agents shall be determined solely by the express provisions of this Agreement and
they shall not be under any obligation or duty except for the performance of such duties and
obligations as are specifically set forth herein, and no implied covenants shall be read into this
Agreement against them. The Collateral Administrator may consult with counsel and shall be
protected in and shall have no liability as a result of any action reasonably taken in good faith in
accordance with the advice of such counsel.
(b)
The Collateral Administrator may rely conclusively on and shall be fully protected
in acting or refraining from acting upon any notice, certificate, statement, instrument, opinion,
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Administrator nor any of its affiliates, directors, officers, shareholders, agents or employees will
be liable to the Collateral Manager, the Borrower or any other Person, except by reason of acts or
omissions by the Collateral Administrator constituting willful misfeasance or gross negligence.
The Collateral Administrator shall in no event have any liability for the actions or omissions of
the Borrower, the Collateral Manager or any other Person, and shall have no liability for any
inaccuracy or error in any duty performed by it that results from or is caused by inaccurate,
untimely or incomplete information or data received by it from the Borrower, the Collateral
Manager or another Person except to the extent that such inaccuracies or errors are caused by the
report, notice, request, direction, consent, order, note, electronic communication or other paper
or other document (including telecopier or other electronically transmitted instructions,
documents or information) furnished to it hereunder and reasonably believed by it in good faith
to be genuine. The Collateral Administrator shall not be liable for any action taken by it in good
faith and reasonably believed by it to be within the discretion or powers conferred upon it, or
taken by it pursuant to any direction or instruction by which it is governed hereunder, or omitted
to be taken by it by reason of the lack of direction or instruction required hereby for such action.
The Collateral Administrator shall not be bound to make any investigation into the facts or
matters stated in any certificate, report, resolution, instrument, opinion, consent, order, approval,
bond or other document. Under no circumstances shall the Collateral Administrator be liable for
indirect, punitive, special or consequential loss or damages of any kind whatsoever (including,
but not limited to, lost profits) under or pursuant to this Agreement, its duties or obligations
hereunder or arising out of or relating to the subject matter hereof even if the Collateral
Administrator has been advised of the likelihood of such damages and regardless of the form of
such action. In no event shall the Collateral Administrator be responsible or liable for any failure
or delay in the performance of its obligations hereunder because of circumstances beyond its
control, including, but not limited to, acts of god, lockouts, riots, acts of war, epidemics, acts of
terrorism; civil or military disturbances; sabotage, epidemics, diseases, quarantines, national
emergencies, interruptions, loss or malfunctions of utilities, computer (hardware or software) or
communications services; labor disputes; acts of civil or military authority or governmental
action, governmental regulations imposed after the fact, fire, flood, communication line failures,
computer viruses, power failures, earthquakes or other disasters, governmental regulations
imposed after the fact, fire, communication line failures, computer viruses, power failures,
earthquakes or other disasters. It is expressly acknowledged by the Borrower and the Collateral
Manager that application and performance by the Collateral Administrator of its various duties
hereunder (including recalculations to be performed in respect of the matters contemplated
hereby) shall be based upon, and in reliance upon, data and information provided to it by the
Collateral Manager (and/or the Borrower) with respect to the Collateral, and the Collateral
Administrator shall have no responsibility for the accuracy or completeness of any such
information or data provided to it by such Persons. Nothing herein shall impose or imply any duty
or obligation on the part of the Collateral Administrator to verify, investigate or audit any such
information or data, or to determine or monitor on an independent basis whether any obligor under
the Collateral is in default or in compliance with the underlying documents governing or securing
such securities, from time to time, the role of the Collateral Administrator hereunder being solely
to perform certain mathematical computations and data comparisons and to provide certain reports
and other deliveries, as provided herein.
(c)
The Borrower shall, and hereby agrees to, reimburse, indemnify and hold harmless
the Collateral Administrator and its affiliates, directors, officers, shareholders, agents and
employees for and from any and all Liabilities in respect of, or arising from any acts or omissions
performed or omitted by the Collateral Administrator, its affiliates, directors, officers,
shareholders, agents or employees pursuant to or in connection with the terms of this Agreement,
or in the performance or observance of its duties or obligations under this Agreement; provided
the same are in good faith and without willful misfeasance, fraud and/or gross negligence on the
part of the Collateral Administrator or without reckless disregard of its duties hereunder. The
obligations of the Borrower under this Section 15.03(c) shall survive the termination of this
Agreement and any earlier resignation or removal of the Collateral Administrator.
(d)
Nothing herein shall obligate the Collateral Administrator to determine
independently the correct characterization or categorization of any item of Collateral, or to
evaluate or verify the Collateral Manager’s characterization of any item of Collateral including
whether any item of Collateral is a Defaulted Collateral Loan, Ineligible Collateral Loan, Equity
Security, Covenant Lite Loan, Current Modified Loan, Delayed Drawdown Collateral Loan, DIP
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Loan, Discount Collateral Loan, Eligible Collateral Loan, First Lien/Last Out Loan, First Lien
Loan, Fixed Rate Loan, Floating Rate Loan, Floor Loan, Government Security, Haircut Collateral
Loan, Haircut Level 1 Collateral Loan, Haircut Level 2 Collateral Loan, Haircut Level 3 Collateral
Loan, Haircut Level 4 Collateral Loan, Listed Collateral Loan, Partial PIK Loan, PIK Loan,
Revolving Collateral Loan, Scheduled Split First Lien Loan, Second Lien Loan, Split First Lien
Loan, Split Lien Loan, Stretch Senior Loan, Structured Finance Obligation, Substitute Loan, Zero
Coupon Obligation or Credit Improved Loan, any such determination being based exclusively
upon notification the Collateral Administrator receives from the Collateral Manager and nothing
herein shall obligate the Collateral Administrator to review or examine any underlying instrument
or contract evidencing, governing or guaranteeing or securing any Collateral Loan in order to
verify, confirm, audit or otherwise determine any characteristic thereof. In addition, the Collateral
Manager shall notify the Collateral Administrator of any amendment or modification of a
Collateral Loan. The Collateral Manager shall review and verify the contents of the aforesaid
reports. To the extent any of the information in such reports, instructions or certificates conflicts
with information, data or calculations in the records of the Collateral Manager, the Collateral
Manager shall notify the Collateral Administrator of such
discrepancy and use commercially reasonable efforts to assist the Collateral Administrator in
reconciling such discrepancy, failing which the determination of the Collateral Manager shall
prevail. The Collateral Agent and the Collateral Administrator shall cooperate with the Collateral
Manager in connection with the Collateral Manager’s review of the contents of the aforesaid
reports, instruction and certificates and will use commercially reasonable efforts to provide such
items to the Collateral Manager within a reasonably sufficient time (as agreed between the
Collateral Manager, the Collateral Agent and the Collateral Administrator) prior to any applicable
due date to enable such review. The Collateral Administrator shall have no obligation to prepare
a Borrowing Base Calculation Statement, or determine the Borrowing Base. Other than as
expressly set forth herein, nothing herein shall obligate the Collateral Administrator to review or
examine any underlying instrument or contract evidencing, governing or guaranteeing or securing
any Collateral Loan in order to verify, confirm, audit or otherwise determine any characteristic
thereof.
(e)
Without limiting the generality of any terms of this Section 15.03, the Collateral
Administrator shall have no liability for any failure, inability or unwillingness on the part of the
Collateral Manager or Borrower (or Collateral Agent, if not the same Person as the Collateral
Administrator) to provide accurate and complete information on a timely basis to the Collateral
Administrator, or otherwise on the part of any such Person to comply with the terms of this
Agreement and shall have no liability for any inaccuracy or error in the performance or observance
on the Collateral Administrator’s part of any of its duties hereunder that is caused by or results
from any such inaccurate, incomplete or untimely information received by it, or other failure on
the part of any such other Person to comply with the terms hereof.
(f)
In addition to, and without limiting, the rights, protections, indemnities and
immunities afforded to the Collateral Administrator herein, the Collateral Administrator shall
have the same rights, protections, indemnities and immunities as are offered the Collateral Agent
under this Agreement.
(g) The Collateral Administrator shall have no obligation to determine the outstanding
amounts due and payable in respect of the Advances or the calculation or verification of any
Benchmark in respect thereof, and in each case shall entitled to conclusively rely upon information
provided by the Administrative Agent in respect of such items.
(h)
The Collateral Administrator shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that
the Collateral Administrator was grossly negligent in ascertaining the pertinent facts.
(i)
No provision of this Agreement shall require the Collateral Administrator to
expend or risk its own funds or otherwise incur any financial or other liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated
hereunder, if it shall have reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such
risk or liability relates to the performance of its ordinary services under this Agreement.
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(j)
The Collateral Administrator shall have no obligation to determine the Market
Value or the price of any Collateral in connection with any actions or duties under this Agreement.
(k)
Neither the Collateral Administrator nor any of its directors, officers or employees
shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to
be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or
for anything which it may do or refrain from doing in connection herewith, unless such action
constitutes willful misconduct, gross negligence or reckless disregard of its duties hereunder.
(l)
The Collateral Administrator shall not be deemed to have notice of any fact, claim
or demand with respect hereto unless actually known by a Responsible Officer of the Collateral
Administrator or unless (and then only to the extent) received in writing by the Collateral
Administrator and specifically referencing this Agreement.
(m)
The permissive right of the Collateral Administrator to take any action hereunder
shall not be construed as a duty.
(n)
All indemnifications contained in this Agreement in favor of the Collateral
Administrator shall survive the termination of this Agreement or any resignation or removal of
the Collateral Administrator.
(o)
The Collateral Administrator shall not be responsible for the accuracy or content
of any certificate, statement, direction or opinion furnished to it in connection with this Agreement
or any other Facility Document or Related Document. The Collateral Administrator shall not have
(p)
The Borrower and the Collateral Manager shall use commercially reasonable
efforts to cooperate with the Collateral Agent and/or the Collateral Administrator in connection
with the matters described herein, including in respect of the confirmation of calculations required
under Section 8.06 hereof or as otherwise reasonably requested by the Collateral Agent
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any responsibility for filing or recording any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any security interest or lien
granted by any Person under any Facility Document or Related Document. Other than as expressly
set forth herein, the Collateral Administrator shall not be responsible to any Person for any recitals,
statements, information, representations or warranties regarding the Borrower or the Collateral or
in any document, certificate or other writing delivered in connection herewith or therewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability,
priority or sufficiency of thereof or any such other document or the financial condition of any
Person or be required to make any inquiry concerning either the performance or observance of any
of the terms, provisions or conditions related to any Person or the existence or possible existence
of any Default or Event of Default. Other than as expressly set forth herein, the Collateral
Administrator shall not have any obligation whatsoever to any Person to assure that any collateral
exists or is owned by any Person or is cared for, protected or insured or that any liens have been
properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise or to continue exercising at all or in any manner or under any
duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available
with respect thereto.
or the Collateral Administrator hereunder. Without limiting the generality of the foregoing the
Collateral Manager shall supply in a timely fashion any information maintained by it, including,
without limitation, the classification or characterization of each Collateral Loan or related Obligor
that the Collateral Administrator may from time to time reasonably request with respect to the
Collateral Loans or obligors or reasonably need to perform the confirmations described above.
Nothing herein shall obligate the Collateral Administrator to determine (i) the type, classification
or characterization of any Collateral Loan or related Obligor, or (ii) the Advance Rate or
Aggregate Collateral Balance of any Collateral Loan or EBITDA of any related Obligor or market
value of any Collateral Loan, any such determination in each case being based exclusively upon
notification it receives from the Collateral Manager. For purposes of monitoring rating changes
by the rating agencies, the Collateral Administrator shall be entitled to use and rely (in good faith)
exclusively upon any reputable electronic financial information reporting service (including the
Bloomberg wire service), and shall have no liability for any inaccuracies in the information
reported by, or other errors or omissions of, any such service.
Section 15.04. Termination of Collateral Administrator. (a) At the option of the Borrower
(with the prior written consent or at the direction of the Administrative Agent prior to the
Collection Date), the Collateral Administrator may be terminated upon at least ten Business Days’
written notice of termination from the Borrower to the Collateral Administrator and the
Administrative Agent if either of the following events shall occur:
(1)
The Collateral Administrator shall, in violation of its duty of care
hereunder, default in the performance of any of its material duties under this Agreement
and shall not cure such default within thirty days (or, if such default cannot be cured in
such time, the Collateral Administrator shall not have given within thirty days such
assurance of cure as shall be reasonably satisfactory to the Borrower and the
Administrative Agent and cured such default within the time so assured); or
(2)an Insolvency Event relating to the Collateral Administrator occurs.
If an event specified in clause (2) shall occur, the Collateral Administrator shall give written
notice thereof to the Collateral Manager, the Administrative Agent and the Borrower within ten
(10) Business Days after the occurrence of such event. The Collateral Administrator may be
removed, with or without cause, by the Administrative Agent, with the consent of the Borrower
(if such removal is without cause) so long as no Event of Default has occurred and is continuing,
by at least 30 days’ notice given in writing to the Collateral Administrator.
(b)
Except when the Collateral Administrator shall be removed pursuant to subsection
(a) of this Section 15.04 or shall resign pursuant to subsection (c) of this Section 15.04, no removal
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or resignation of the Collateral Administrator shall be effective until the date as of which a
successor collateral administrator reasonably acceptable to the Administrative Agent, the
Borrower and the Collateral Manager shall have agreed in writing to assume all of the Collateral
Administrator’s duties and obligations pursuant to this Agreement and shall have executed and
delivered an agreement in form and content reasonably satisfactory to the Administrative Agent,
the Borrower, the Collateral Manager and the Collateral Agent. Upon any resignation or removal
of the Collateral Administrator hereunder, the Borrower shall promptly, and in any case within
thirty (30) days after the related notice of resignation or removal, appoint
a qualified successor to act as collateral administrator hereunder and cause such successor
collateral administrator to execute and deliver an agreement accepting such appointment as
described in the preceding sentence. If the Borrower fails to appoint such a qualified successor
which duly accepts its appointment by properly executing and delivering such an agreement
within such time, the retiring Collateral Administrator shall be entitled to petition a court of
competent jurisdiction for the appointment of a successor to serve as collateral administrator
hereunder and shall be indemnified pursuant to Section 15.03(c) for the reasonable costs and
expenses thereof.
(c)
Notwithstanding the foregoing, the Collateral Administrator may resign at any
time by giving written notice thereof to the Borrower, the Administrative Agent, the Collateral
Manager and the Lenders not less than 90 days prior to such resignation.
(d)
Any corporation, organization or entity into which the Collateral Administrator
may be merged or converted or with which it may be consolidated, or any corporation,
organization or entity resulting from any merger, conversion or consolidation to which the
Collateral Administrator shall be a party, or any corporation, organization or entity succeeding to
all or substantially all of the collateral administration business of the Collateral Administrator,
shall be the successor of the Collateral Administrator hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Section 15.05. Representations and Warranties of the Collateral Administrator. The
Collateral Administrator hereby represents and warrants to the Collateral Manager and the
Borrower as follows:
(i)
The Collateral Administrator (a) prior to the Resignation Effective Date, is
a limited partnership duly organized, validly existing and in good standing under the Laws
of the State of Texas and has full limited partnership power and authority to execute,
deliver and perform this Agreement and all obligations required hereunder and has taken
all necessary limited partnership action to authorize this Agreement on the terms and
conditions hereof, the execution, delivery and performance of this Agreement and all
obligations required hereunder and (b) on and after the Resignation Effective Date, is a
national banking association duly organized, validly existing and in good standing under
the Laws of the United States and has full corporate power and authority to execute, deliver
and perform this Agreement and all obligations required hereunder and has taken all
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necessary corporate action to authorize this Agreement on the terms and conditions hereof,
the execution, delivery and performance of this Agreement and all obligations required
hereunder. No license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any Governmental Authority, except those
that have been obtained, is required by the Collateral Administrator in connection with this
Agreement or the execution, delivery, performance, validity or enforceability of this
Agreement and the obligations imposed upon it hereunder. When executed and delivered
by the Collateral Administrator and the other parties hereto, this Agreement will constitute
the legal, valid and binding obligations of the Collateral Administrator enforceable against
the Collateral Administrator in accordance with its terms subject, as to enforcement, (a) to
the effect of bankruptcy, insolvency or similar Laws affecting generally the enforcement
of creditors’
rights as such Laws would apply in the event of any bankruptcy, receivership, insolvency
or similar event applicable to the Collateral Administrator and (b) to general equitable
principles (whether enforceability of such principles is considered in a proceeding at law
or in equity).
(ii) The execution, delivery and performance of this Agreement and the
documents and instruments required hereunder will not violate any provision of
Applicable Law, or the articles of association or by-laws, as amended, of the Collateral
Administrator.
Section 15.06. Successors and Assigns. This Agreement shall inure to the benefit of, and
be binding upon, the successors and assigns of the Collateral Administrator; provided, however,
that the Collateral Administrator may not assign its rights and obligations hereunder without the
prior written consent of the Collateral Manager, the Administrative Agent and the Borrower.
Notwithstanding the foregoing, the Collateral Administrator consents to the pledge of its rights
under this Agreement by the Borrower to the Collateral Agent, as provided in the granting
language set forth in Section 7.01.
Section 15.07. Joint Venture. Nothing contained in this Agreement (i) shall constitute the
Borrower, the Collateral Administrator, the Agents and the Collateral Manager as members of
any partnership, joint venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of them or (iii) shall be deemed
to confer on any of them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
ARTICLE XVI
MISCELLANEOUS
Section 16.01. No Waiver; Modifications in Writing. (a) No failure or delay on the part
of any Secured Party exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or remedy. Any waiver
of any provision of this Agreement or any other Facility Document, and any consent to any
departure by any party to this Agreement or such other Facility Document from the terms of any
provision of this Agreement, shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on the Borrower or the Collateral Manager in
any case shall entitle the Borrower or the Collateral Manager to any other or further notice or
demand in similar or other circumstances.
(b)
Except as otherwise provided in this Agreement, including, without limitation, in
Section 2.11 with respect to the implementation of a Benchmark Replacement or Conforming
Changes (as set forth therein), no amendment, modification, supplement or waiver of this
Agreement shall be effective unless signed by the Borrower, the Collateral Manager, the
Administrative Agent and the Required Lenders, provided that:
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(i)
Lenders;
any Fundamental Amendment shall require the written consent of all
(ii)
no such amendment, modification, supplement or waiver shall amend,
modify or otherwise affect the rights or duties of any Agent, the Custodian, the Document
Custodian or the Collateral Administrator hereunder without the prior written consent of
such Agent, Custodian, Document Custodian or Collateral Administrator, as the case may
be; and
(iii)
no amendment, modification, supplement or waiver shall amend, modify
or otherwise affect the rights or duties of the Swingline Lender hereunder without the prior
written consent of the Swingline Lender.
(c)
Notwithstanding anything to the contrary herein (other than Section 2.18), in
connection with the increase of the Commitments hereunder, only the consent of the Lender
increasing its Commitment (or providing a new Commitment) shall be required for any
amendment or Facility Amount Increase Agreement that affects such increase in Commitments.
(d)
any right to
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all Lenders or each
affected Lender may be effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or
extended without the consent of such Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting
Lender more adversely than other affected Lenders shall require the consent of such Defaulting
Lender.
Each of the Collateral Agent, the Custodian, the Document Custodian and the Collateral
Administrator agrees to accept and act upon instructions or directions pursuant to this Agreement,
any other Facility Document, or any Related Document or any document executed in connection
herewith or therewith sent by unsecured email (or a .pdf or other similar file), facsimile
transmission or other similar unsecured electronic methods; provided, however, that
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Section 16.02. Notices, Etc. Except where telephonic instructions are authorized herein
to be given, all notices, demands, instructions and other communications required or permitted to
be given to or made upon any party hereto shall be in writing and shall be personally delivered or
sent by registered, certified or express mail, postage prepaid, or by facsimile transmission, or by
prepaid courier service, or by electronic mail (of a .pdf or other similar file if the recipient has
provided an email address in Schedule 5), and shall be deemed to be given for purposes of this
Agreement on the day that such writing is received by the intended recipient thereof in accordance
with the provisions of this Section 16.02. Unless otherwise specified in a notice sent or delivered
in accordance with the foregoing provisions of this Section 16.02, notices, demands, instructions
and other communications in writing shall be given to or made upon the respective parties hereto
at their respective addresses (or to their respective facsimile numbers or email addresses) indicated
in Schedule 5, and, in the case of telephonic instructions or notices, by calling the telephone
number or numbers indicated for such Person in Schedule 5.
any person providing such instructions or directions shall provide an incumbency certificate listing
persons designated to provide such instructions or directions as such incumbency certificate may
be supplemented from time to time. If any person elects to give the Collateral Agent, the
Custodian, the Document Custodian and the Collateral Administrator email or facsimile
instructions (or instructions by a similar electronic method) and the Collateral Agent, the
Custodian, the Document Custodian and the Collateral Administrator in its discretion elects to act
upon such instructions, the Collateral Agent’s, the Custodian’s, the Document Custodian’s and
the Collateral Administrator’s reasonable understanding of such instructions shall be deemed
controlling. None of the Collateral Agent, the Custodian, the Document Custodian and the
Collateral Administrator shall be liable for any losses, costs or expenses arising directly or
indirectly from its reliance upon and compliance with such instructions notwithstanding such
instructions conflicting with or being inconsistent with a subsequent written instruction. Any
person providing such instructions or directions acknowledges and agrees that there may be more
secure methods of transmitting such instructions than the method(s) selected by it and agrees that
the security procedures (if any) to be followed in connection with its transmission of such
instructions provide to it a commercially reasonable degree of protection in light of its particular
needs and circumstances.
Section 16.03.Taxes.
(a)
Any and all payments by the Borrower to or for the account of any Secured Party
under any Facility Document shall be made free and clear of and without deduction or withholding
(b)
The Borrower agrees to timely pay to the relevant Governmental Authority in
accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse
it for the payment of, any Other Taxes.
(c)
The Borrower agrees to indemnify each Secured Party, within 10 days after
demand therefor, for (i) the full amount of Indemnified Taxes (including any Indemnified Taxes
imposed or asserted by any jurisdiction on or attributable to amounts payable under this Section
16.03) payable or paid by any Secured Party or required to be withheld or deducted from a
payment to such Secured Party and (ii) any reasonable liability arising from Indemnified Taxes
or with respect thereto, in each case whether or not such Indemnified Taxes were correctly or
legally imposed or asserted by the relevant taxing Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Secured Party (with a
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for any and all present or future Taxes with respect thereto, unless required by Applicable Law.
If any Applicable Law (as determined in the good faith discretion of the Borrower or the
Administrative Agent) requires the deduction or withholding of any Tax from any such payment
by the Borrower, the Collateral Agent or the Administrative Agent, then the Borrower, the
Collateral Agent or the Administrative Agent shall be entitled to make such deduction or
withholding and shall timely pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified
Tax, then the sum payable by the Borrower shall be increased as may be necessary so that after
such deduction or withholding has been made (including such deductions and withholdings
applicable to additional sums payable under this Section 16.03) the applicable Secured Party
receives an amount equal to the sum it would have received had no deductions or withholding of
Indemnified Taxes been made.
copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf
of another Secured Party, shall be conclusive absent manifest error.
(d)
Each Lender shall severally indemnify the Administrative Agent, within 10 days
after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the
extent that the Borrower has not already indemnified the Administrative Agent for such
Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes
attributable to such Lender’s failure to comply with the provisions of Section 16.06(c)(ii) relating
to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such
(e)
As soon as practicable after the date of any payment of Taxes by the Borrower to
any Governmental Authority pursuant to this Section 16.03, the Borrower will furnish to the
Administrative Agent the original or a certified copy of a receipt issued by the relevant
Governmental Authority evidencing payment thereof (or other evidence of payment as may be
reasonably satisfactory to the Administrative Agent).
(f)
If any Secured Party in its sole discretion, but acting in good faith, determines that
it has received a refund of any Indemnified Taxes with respect to which it has been indemnified
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Lender, in each case, that are payable or paid by the Administrative Agent in connection with any
Facility Document, and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to
such Lender under any Facility Document or otherwise payable by the Administrative Agent to
the Lender from any other source against any amount due to the Administrative Agent under this
Section 16.03(d).
pursuant to this Section 16.03 (including by the payment of additional amounts pursuant to Section
16.03(a)), such Secured Party shall reimburse the Borrower (or the Collateral Manager, as
applicable) such amount of any refund received (net of all out-of-pocket expenses (including
Taxes) incurred and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund)) as such Secured Party shall determine in its sole discretion,
but acting in good faith, to be attributable to the relevant Indemnified Taxes; provided that in the
event that such Secured Party is required to repay such refund (plus any penalties, interest, or other
charges imposed by the relevant taxing authority) to the relevant taxing authority, the Borrower
agrees to return the refund to such Secured Party. Notwithstanding anything to the contrary in this
Section 16.03(f), in no event will any Secured Party be required to pay any amount to an
indemnifying party pursuant to this Section 16.03(f) the payment of which would place such
Secured Party in a less favorable net after-Tax position than such Secured Party would have been
in if the Tax subject to indemnification and giving rise to such refund had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts with
respect to such Tax had never been paid. Unless required by Applicable Law, at no time shall any
Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any
obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the
account of such Lender, as the case may be.
(g)
(i) Any Lender that is entitled to an exemption from or reduction of withholding
Tax with respect to payments made under any Facility Document shall deliver to the Borrower
(ii)
Without limiting the generality of Section 16.03(g)(i), each Lender that is
a U.S. Person shall, on or prior to the date on which such Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or any Agent), deliver to the Borrower and each Agent, two accurate, complete
and signed copies of U.S. Internal Revenue Service Form W-9 or any successor form,
certifying that such Lender is entitled to an exemption from U.S. backup withholding tax.
(iii)
Without limiting the generality of Section 16.03(g)(i), each Lender that is
not a U.S. Person (a “Non-U.S. Lender”) shall, to the extent it is legally entitled to do so,
deliver to the Borrower and each Agent, on or prior to the date on which such Non-U.S.
Lender becomes a Lender under this Agreement (and from time to time thereafter upon
the reasonable request of the Borrower or any Agent), two accurate, complete and signed
copies of whichever of the following is applicable:
(A)
in the case of a Non-U.S. Lender claiming the benefits of an income
tax treaty to which the United States is a party (x) with respect to payments of
(B)
executed copies of U.S. Internal Revenue Service Form W-8ECI;
(C)
in the case of a Non-U.S. Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
to the effect that such Non-U.S. Lender is not a “bank” within the meaning of
Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower
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and the Administrative Agent, at the time or times reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation reasonably requested
by the Borrower or the Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested
by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed
by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will
enable the Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements. Notwithstanding anything
to the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Sections 16.03(g)(ii), (iii) and (v)
below) shall not be required if in the Lender’s reasonable judgment such completion, execution or
submission would subject such Lender to any material unreimbursed cost or expense or would
materially prejudice the legal or commercial position of such Lender.
interest under any Facility Document, executed copies of U.S. Internal Revenue
Service Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the “interest”
article of such tax treaty and (y) with respect to any other applicable payments
under any Facility Document, U.S. Internal Revenue Service Form W-8BEN-E (or
W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S.
federal withholding Tax pursuant to the “business profits” or “other income”
article of such tax treaty;
within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax
Compliance Certificate”) and (y) executed copies of U.S. Internal Revenue
Service Form W-8BEN-E (or W-8BEN, as applicable); or
(D)
to the extent a Non-U.S. Lender is not the beneficial owner,
executed copies of U.S. Internal Revenue Service Form W-8IMY, accompanied by
IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax
Compliance Certificate, IRS Form W-9, and/or other certification documents from
each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a
partnership and one or more direct or indirect partners of such Non-U.S. Lender
are claiming the portfolio interest exemption, such Non-U.S. Lender may provide
a U.S. Tax Compliance Certificate on behalf of each such direct and indirect
partner.
(iv)
Each Non-U.S. Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Agents (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or any Agent), executed copies of any other form prescribed by Applicable Law
as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax,
duly completed, together with such supplementary documentation as may be prescribed by
Applicable Law to permit the Borrower or the Agents to determine the withholding or
deduction required to be made.
(v)
If a payment made to a Lender under any Facility Document would be
(vi)
To the extent legally entitled to do so, each Lender agrees that, from time
to time after the Closing Date, such Lender shall deliver the forms described above, as
applicable, as promptly as practicable after (A) receipt of a reasonable written request
therefor from the Borrower or an Agent or (B) when a lapse in time or change in
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subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting requirements of FATCA (including those contained
in Section 1471(b) or 1472(b) of the Code, as applicable and for purposes of this Section
16.03(g)(v), any intergovernmental agreement entered into with the United States in
connection with the implementation of such Sections and any legislation, regulations or
official guidance implementing such an intergovernmental agreement), such Lender shall
deliver to the Borrower and the Administrative Agent at the time or times prescribed by
Law and at such time or times reasonably requested by the Borrower or the
Administrative Agent such documentation prescribed by Applicable Law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrower or the Administrative Agent as may be necessary
for the Borrower and the Administrative Agent to comply with their obligations under
FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this Section 16.03(g)(v), “FATCA” shall include any amendments
made to FATCA after the Closing Date.
circumstance renders a previously provided form or certificate obsolete or inaccurate.
Notwithstanding any other provision of this Section 16.03, a Lender shall not be required
to deliver any form after the Closing Date pursuant to this Section 16.03(g) that such
Lender is not legally able to deliver.
(h)
If any Lender requires the Borrower to pay any Indemnified Taxes or additional
(i)
Nothing in this Section 16.03 shall be construed to require any Secured Party to
make available its Tax returns (or any other information relating to its Taxes that it deems
confidential) to the Borrower or any other Person.
(j)
Without prejudice to the survival of any other agreement hereunder, the
agreements and obligations contained in this Section 16.03 shall survive the termination of this
Agreement.
Section 16.04.Costs and Expenses; Indemnification.
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amount to such Lender or any Governmental Authority for the account of such Lender pursuant
to this Section 16.03, then such Lender shall (at the request of the Borrower) use reasonable efforts
to designate a different lending office for funding or booking its Advances hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or affiliates, if such Lender
determines, in its sole discretion, that such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to this Section 16.03 in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.
The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(a) The Borrower agrees to promptly pay on demand all reasonable and documented
out-of-pocket costs and expenses of the Agents, the Custodian, the Document Custodian and
Citibank in any other capacity in connection with the preparation, review, negotiation,
reproduction, execution and delivery of this Agreement and the other Facility Documents and the
performance of their duties under the Facility Documents, including the reasonable and
documented fees and disbursements of one outside counsel for the Administrative Agent and the
Lenders, collectively, and outside counsel for the Collateral Agent, the Custodian, the Document
Custodian and the Collateral Administrator, costs and expenses of creating, perfecting, releasing
or enforcing the Collateral Agent’s security interests in the Collateral, including filing and
recording fees, expenses, search fees, UCC filing fees and the equivalent thereof in any foreign
jurisdiction, if applicable, and all other related fees and expenses in connection therewith; and in
connection with the administration and any waiver, consent, modification or amendment or similar
agreement in respect of this Agreement or any other Facility Document and advising the Agents,
the Custodian, the Document Custodian, the Collateral Administrator and the Lenders as to their
respective rights, remedies and responsibilities. Further, the Borrower agrees to promptly pay on
demand all reasonable and documented costs and expenses of each of the Secured Parties in
connection with the enforcement of this Agreement or any other Facility Document, including all
reasonable and documented costs and expenses incurred by the Secured Parties in connection with
the preservation, collection, foreclosure or enforcement of the Collateral subject to the Facility
Documents or any interest, right, power or remedy of the Secured Parties or in connection with
the collection or enforcement of any of the Obligations or the proof, protection,
administration or resolution of any claim based upon the Obligations in any insolvency
proceeding, including all reasonable fees and disbursements of attorneys, accountants, auditors,
consultants, appraisers and other professionals engaged by any of the Secured Parties. Without
prejudice to its rights hereunder, the expenses and the compensation for the services of the Secured
Parties are intended to constitute expenses of administration under any applicable bankruptcy
Law. For the avoidance of doubt, this Section 16.04(a) shall not apply to Taxes, other than any
Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim, which shall be
covered by Section 16.03.
(b)
The Borrower agrees to indemnify and hold harmless each Secured Party and each
of their Affiliates and the respective officers, directors, employees, agents, managers of, and any
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Person controlling any of, the foregoing (each, an “Indemnified Party”) from and against any and
all Liabilities that may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of the execution, delivery, enforcement,
performance, administration of or otherwise arising out of or incurred in connection with this
Agreement, any other Facility Document, any Related Document or any transaction contemplated
hereby or thereby (and regardless of whether or not any such transactions are consummated),
including any such Liability that is incurred or arises out of or in connection with, or by reason of
any one or more of the following: (i) preparation for a defense of any investigation, litigation or
proceeding arising out of, related to or in connection with this Agreement, any other Facility
Document, any Related Document or any of the transactions contemplated hereby or thereby; (ii)
any breach of any covenant by the Borrower, the Parent or the Collateral Manager contained in
any Facility Document; (iii) any representation or warranty made or deemed made by the
Borrower, the Parent or the Collateral Manager contained in any Facility Document or in any
certificate, statement or report delivered in connection therewith is false or incorrect; (iv) any
failure by the Borrower, the Parent or the Collateral Manager to comply with any Applicable Law
or contractual obligation binding upon it; (v) any failure to vest, or delay in vesting, in the
Collateral Agent (for the benefit of the Secured Parties) a perfected security interest in all of the
Collateral free and clear of all Liens (other than Permitted Liens); (vi) any action or omission, not
expressly authorized by the Facility Documents, by the Borrower, the Parent, or any of their
respective Affiliates which has the effect of impairing the validity or enforceability of the
Collateral or the rights of the Agents or the other Secured Parties with respect thereto; (vii) the
failure to file, or any delay in filing, financing statements, continuation statements or the
equivalent thereof in any foreign jurisdiction or other similar instruments or documents under the
UCC of any applicable jurisdiction or other Applicable Law with respect to any Collateral,
whether at the time of any Advance or at any subsequent time;
(viii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of an Obligor)
of an Obligor to the payment with respect to any Collateral (including a defense based on any
Collateral Loan (or the Related Documents evidencing such Collateral Loan) not being a legal,
valid and binding obligation of such Obligor enforceable against it in accordance with its terms,
except to the extent such unenforceability is due to the bankruptcy of such Obligor), or any other
claim resulting from any related property securing such Collateral Loan; (ix) the commingling of
Collections on the Collateral at any time with other funds; (x) any failure by the Borrower to give
reasonably equivalent value to the applicable seller, in consideration for the transfer by such seller
to the Borrower of any item of Collateral or any attempt by any Person to void or otherwise avoid
any such transfer under any statutory provision or common law or equitable action, including any
provision of the Bankruptcy Code; (xi) the failure of the Borrower, the Collateral
Manager or any of their respective agents or representatives to remit to the Collection Account,
within two (2) Business Days of receipt, Collections on the Collateral Loans remitted to the
Borrower, the Collateral Manager or any such agent or representative as provided in this
Agreement; and (xii) any Default or Event of Default; provided that the Borrower shall not be
liable (A) for any Liability or losses arising due to the deterioration in the credit quality or market
value of the Collateral Loans or other Collateral hereunder, or (B) to the extent any such Liability
is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party’s gross negligence or willful misconduct; provided, further, that any
payment hereunder which relates to taxes, levies, imposes, deductions, charges and withholdings,
and all liabilities (including penalties, interest and expenses) with respect thereto, or additional
sums described in Sections 2.09, 2.10 or 16.03, shall not be covered by this Section 16.04(b). In
no case shall the Borrower be responsible for any Indemnified Party’s lost revenues or lost profits
or for any indirect, special, exemplary, punitive or consequential damages suffered by such
Indemnified Party (but, for the avoidance of doubt, the Borrower shall be responsible for any
liability consisting of such amount paid by an Indemnified Party to a third party).
(c)
The Collateral Manager agrees to indemnify and hold harmless each Indemnified
Party from and against any and all Liabilities that may be incurred by or asserted or awarded
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against any Indemnified Party, in each case arising out of or in connection with or by reason of
any one or more of the following: (i) any breach of any covenant by the Collateral Manager
contained in any Facility Document; (ii) any representation or warranty made or deemed made by
the Collateral Manager contained in any Facility Document or in any certificate, statement or
report delivered in connection therewith is false or misleading; (iii) any failure by the Collateral
Manager to comply with any Applicable Law or contractual obligation binding upon it; (iv) any
action or inaction of the Collateral Manager which causes the Collateral Agent (for the benefit of
the Secured Parties) not to have a perfected security interest in all of the Collateral free and clear
of all Liens (other than Permitted Liens); (v) the commingling of Collections on the Collateral at
any time with other funds of the Collateral Manager; and (vi) any failure by the Collateral Manager
to remit to the Collection Account, within two (2) Business Days of receipt, Collections on the
Collateral Loans remitted to the Collateral Manager; provided the Collateral Manager shall not be
liable (A) for any Liability or losses arising due to the deterioration in the credit quality or market
value of the Collateral Loans or other Collateral hereunder, (B) to the extent any such Liability is
found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party’s bad faith, gross negligence or willful misconduct; provided, further,
that any payment hereunder which relates to taxes, levies, imposes, deductions, charges and
withholdings, and all liabilities (including penalties, interest and expenses) with respect thereto,
or additional sums described in Sections 2.09, 2.10 or 16.03, shall not be covered by this Section
16.04(c), or (C) if any such Liability results from a claim brought by the Collateral Manager or its
Affiliates against an Indemnified Party for breach in bad faith of such Indemnified Party’s
obligations hereunder or under any other Facility Document, if the Collateral Manager or such
Affiliate has obtained a final and non-appealable judgment in its favor on such claim as determined
by a court of competent jurisdiction. The Collateral Manager shall not have any liability hereunder
to any Indemnified Party to the extent an Indemnified Party affects any settlement of a matter that
is (or could be) subject to indemnification hereunder without the prior written consent of the
Collateral Manager (which consent shall not be unreasonably withheld or delayed). In no case
shall the Collateral Manager be responsible for
any Indemnified Party’s lost revenues or lost profits or for any indirect, special, exemplary or
consequential damages suffered by such Indemnified Party (but, for the avoidance of doubt, the
Collateral Manager shall be responsible for any liability consisting of such amount paid by an
Indemnified Party to a third party).
(d)
Notwithstanding the foregoing, for the avoidance of doubt, the indemnification
obligations of the Borrower and the Collateral Manager set forth in this Section 16.04 supersede
in its entirety the indemnification obligations of Main Street Capital Corporation set forth in
Section (D)(2) in the Engagement Letter.
Section 16.06. Assignability. (a) Each Lender may, with the consent of the Administrative
Agent and the Borrower, assign to an assignee all or a portion of its rights and obligations under
this Agreement (including all or a portion of its outstanding Advances or interests therein owned
by it, together with ratable portions of its Commitment); provided that:
(i)
each of the Borrower’s and the Administrative Agent’s consent to any such
assignment (x) shall not be unreasonably withheld or delayed and (y) shall not be required
if the assignee is a Permitted Assignee with respect to such assignor; and
(ii)
the Borrower’s consent to any such assignment pursuant to this Section
16.06(a) shall not be required if an Event of Default shall have occurred and is continuing
(and not been waived by the Lenders in accordance with Section 16.01).
The parties to each such assignment shall execute and deliver to the Administrative Agent
(with a copy to the Collateral Agent) an Assignment and Acceptance and the applicable tax forms
required by Section 16.03(g). Notwithstanding any other provision of this Section 16.06, (A) no
assignment by any Lender to the Borrower, the Parent, the Collateral Manager or any of their
respective Affiliates shall be permitted and (B) any Lender may at any time pledge or grant a
security interest in all or any portion of its rights (including rights to payment of principal
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Section 16.05.Execution in Counterparts. This Agreement shall be valid, binding, and
enforceable against a party when executed and delivered by an authorized individual on behalf of
the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied
manual signature; or (iii) any other electronic signature permitted by the federal Electronic
Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic
Transactions Act, and/or any other relevant electronic signatures law, including any relevant
provisions of the UCC (collectively, “Signature Law”), in each case to the extent applicable.
Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all
purposes have the same validity, legal effect, and admissibility in evidence as an original manual
signature.Each party hereto shall be entitled to conclusively rely upon, and shall have no
liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic
signature, of any other party and shall have no duty to investigate, confirm or otherwise verify
the validity or authenticity thereof.This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such counterparts shall,
together, constitute one and the same instrument. For the avoidance of doubt, original manual
signatures shall be used for execution or indorsement of writings when required under the UCC
or other Signature Law due to the character or intended character of the writings.
and interest) under this Agreement to secure obligations of such Lender, including any pledge or
security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower
or the Administrative Agent; provided that no such pledge or grant of a security interest shall
release such Lender from any of its obligations hereunder or substitute any such pledgee or
grantee for such Lender as a party hereto.
(b)
The Borrower may not assign its rights or obligations hereunder or any interest
herein without the prior written consent of the Agents and the Lenders.
(c)
(i)
Any Lender may, without the consent of the Borrower, sell participations
to Participants in all or a portion of such Lender’s rights and obligations under this Agreement;
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto for the performance of such
obligations, (C) the Borrower, the Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
(ii)
In the event that any Lender sells participations in any portion of its rights
and obligations hereunder, such Lender as nonfiduciary agent for the Borrower shall
maintain a register on which it enters the name of all Participants in the Advances held by
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Agreement, and (D) each Participant shall have agreed to be bound by this Section 16.06(c),
Section 16.06(d), Section 16.06(e) and Section 16.17. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender will not, without the
consent of the Participant, agree to any Fundamental Amendment. Each Lender that sells a
participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate
with the Borrower to effectuate the provisions of Section 2.17 with respect to any Participant.
Sections 2.09, 2.10, and 16.03 shall apply to each Participant as if it were a Lender and had
acquired its interest by assignment pursuant to clause (a) of this Section (subject to the
requirements and limitations set forth in Section 16.03, including the requirements under Section
16.03(g)); provided that (1) such Participant agrees to be subject to the provisions of Section
16.06 as if it were an assignee under clause (a) of this Section 16.06 and (2) no Participant shall
be entitled to any amount under Section 2.09, 2.10, or 16.03 which is greater than the amount the
related Lender would have been entitled to under any such Sections or provisions if the applicable
participation had not occurred.
it and the principal amount (and stated interest thereon) of the portion of the Advance
which is the subject of the participation (the “Participant Register”). An Advance may be
participated in whole or in part only by registration of such participation on the Participant
Register. The Participant Register shall be available for inspection by the Borrower to the
extent necessary for the Borrower to establish that such commitment, loan or other
obligation is in registered form under Section 5f.103-1 of the United States Treasury
Regulations. The entries in a Participant Register shall be conclusive absent manifest error,
and such Lender shall treat each Person whose name is recorded in such Participant
Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, the
Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(d)
The Administrative Agent, on behalf of and acting solely for this purpose as the
Section 16.07. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK.
Section 16.08. Severability of Provisions. Any provision of this Agreement or any other
Facility Document which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 16.09. Confidentiality. (a) Each Secured Party agrees to keep confidential all
non-public information provided to it by the Borrower or the Collateral Manager with respect to
the Borrower, its Affiliates, the Collateral, the Obligors, the Collateral Manager or any other
information furnished to any Secured Party pursuant to this Agreement or any other Facility
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nonfiduciary agent of the Borrower, shall maintain at its address specified in Schedule 5 or such
other address as the Administrative Agent shall designate in writing to the Lenders, a copy of
this Agreement and each Assignment and Acceptance and Lender Joinder Agreement delivered
to and accepted by it and a register (the “Register”) for the recordation of the names and
addresses of the Lenders and the aggregate outstanding principal amount of the outstanding
Advances maintained by each Lender under this Agreement (and any stated interest thereon).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice. An Advance may be assigned or sold in whole or in
part only by registration of such assignment or sale on the Register and in accordance with this
Section 16.06. The Administrative Agent shall update and furnish to the Collateral Agent, the
Collateral Administrator and the Borrower from time to time at the request of the Collateral
Agent or the Borrower an updated version of Schedule 1 reflecting the then-current allocation of
the Commitments.
(e) Notwithstanding anything to the contrary set forth herein or in any other Facility
Document, each Lender hereunder, and each Participant, must at all times be a “qualified
purchaser” as defined in the Investment Company Act (a “Qualified Purchaser”) and a “qualified
institutional buyer” as defined in Rule 144A under the Securities Act (a “QIB”). Each Lender
represents to the Borrower, (i) on the date that it becomes a party to this Agreement (whether by
being a signatory hereto or by entering into an Assignment and Acceptance or Lender Joinder
Agreement) and (ii) on each date on which it makes an Advance hereunder, that it is a Qualified
Purchaser and a QIB. Each Lender further agrees that it shall not assign, or grant any participations
in, any of its Advances or its Commitment to any Person unless such Person is a Qualified
Purchaser and a QIB.
Document (collectively, the “Borrower Information”); provided that nothing herein shall prevent
any Secured Party from disclosing any Borrower Information (a) in connection with this
Agreement and the other Facility Documents and not for any other purpose, (x) to any Secured
Party or any Affiliate or branch of a Secured Party, or (y) any of their respective Affiliates,
employees, directors, agents, attorneys, accountants and other professional advisors (collectively,
the “Secured Party Representatives”), it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Borrower Information and
instructed to keep such Borrower Information confidential, (b) subject to an agreement to comply
with the provisions of this Section and to use the Borrower Information only in connection with
this Agreement and the other Facility Documents and not for any other purpose, to any actual or
bone fide prospective permitted assignees and Participants in any of the Secured Parties’ interests
under or in connection with this Agreement, (c) to any Governmental Authority with jurisdiction
over any Secured Party or any of its Affiliates or any Secured Party Representative,
(d) in response to any order of any court or other Governmental Authority or as may otherwise be
required to be disclosed pursuant to any Applicable Law (provided that such Secured Party will,
to the extent permitted by law, endeavor to promptly notify the Borrower and the Collateral
Manager in advance of such pending disclosure), (e) that is a matter of general public knowledge
or that has heretofore been made available to the public by any Person other than any Secured
Party or any Secured Party Representative, (f) in connection with the exercise of any remedy
hereunder or under any other Facility Document or any action or proceeding relating to this
Agreement or any other Facility Document or the enforcement of rights hereunder or thereunder,
(g) to the extent required or requested by any Governmental Authority purporting to have
jurisdiction over such Person or its Secured Party Representatives (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (h) on a confidential
basis to (i) any rating agency in connection with rating the Borrower or the credit facilities
provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with
the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the
credit facilities provided hereunder, or (i) with the consent of the Borrower or the Collateral
Manager.
(b)
Notwithstanding the foregoing, for the avoidance of doubt, the confidentiality
provision set forth in this Section 16.09 supersede in its entirety the confidentiality provisions set
forth in Section (E)(7) in the Engagement Letter.
Section 16.10. Merger. This Agreement and the other Facility Documents executed by
the Administrative Agent or the Lenders taken as a whole incorporate the entire agreement
between the parties hereto and thereto concerning the subject matter hereof and thereof and this
Agreement and such other Facility Documents supersede any prior agreements among the parties
relating to the subject matter thereof.
Section 16.11. Survival. All representations and warranties made hereunder, in the other
Facility Documents and in any certificate delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery of this Agreement and the making
of the Advances hereunder. The agreements in Sections 2.04(f), 2.09, 2.10, 2.12, 12.04, 16.03,
16.04, 16.09, 16.16, 16.18 and 16.19 and this Section 16.11 shall survive the termination of this
Agreement in whole or in part and the payment in full of the principal of and
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interest on the Advances, any foreclosure under, or modification, release or discharge of, any or
all of the Facility Documents and the resignation or replacement of any Agent.
Section 16.12. Submission to Jurisdiction; Waivers; Service of Process; Etc. Each party
hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement or the other Facility Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for the Southern
District of New York sitting in New York County, and the appellate courts of any of them;
(b)
consents that any such action or proceeding may be brought in any court described
in Section 16.12(a) and waives to the fullest extent permitted by Applicable Law any objection
that it may now or hereafter have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c)
each party hereto (other than the Collateral Agent and the Collateral Administrator)
agrees that service of process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid,
to such Person at its address set forth in Schedule 5 or at such other address as may be permitted
thereunder;
(d)
agrees that nothing herein shall affect the right to effect service of process,
summons, notices and documents in any other manner permitted by Applicable Law; and
(e)
waives, to the maximum extent not prohibited by Law, any right it may have to
claim or recover in any legal action or proceeding against any Secured Party arising out of or
relating to this Agreement or any other Facility Document any special, exemplary, punitive or
consequential damages, provided that nothing in this sentence shall diminish the indemnification
obligations of the Borrower in the event any third party claim includes such damages.
Section 16.13. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
FACILITY DOCUMENT OR FOR ANY COUNTERCLAIM HEREIN OR THEREIN OR
RELATING HERETO OR THERETO.
Section 16.14.Right of Setoff; Payments Pro Rata.
(a)
Subject to Section 9.01(a), if an Event of Default shall have occurred, each Lender
and each of their respective branches and Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender or any such branch
or Affiliate to or for the credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Agreement or any other
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Facility Document to such Lender or their respective branches or Affiliates, irrespective of
whether or not such Lender, branch or Affiliate shall have made any demand under this
Agreement or any other Facility Document and although such obligations of the Borrower may
be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different
from the branch, office or Affiliate holding such deposit or obligated on such indebtedness;
provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section 2.16 and, pending such payment, shall
be segregated by such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide
promptly to the Administrative Agent a statement describing in reasonable detail the obligations
owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each
Lender and their respective branches and Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender or their respective branches
or Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application, provided, that the failure to give such notice shall
not affect the validity of such setoff and application.
(b)
Each of the Lenders agrees that, if it should receive any amount under this
Agreement or any other Facility Document (whether by voluntary payments, by realization upon
security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by
the enforcement of any right under the Facility Documents, or otherwise) which is applicable to
Section 16.15. Waiver of Setoff. Each of the Borrower and the Collateral Manager hereby
waives any right of setoff it may have or to which it may be entitled under this Agreement from
time to time against any Lender or its assets.
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the payment of the principal of, or interest on, the Advances or fees, of a sum which with respect
to the related sum or sums received by other Lenders is in a greater proportion than the total of
such Obligation then owed and due to such Lender bears to the total of such Obligation then owed
and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the other Lenders an
interest in the Obligations to such other Lenders in such amount as shall result in a proportional
participation by all of the Lenders in such disproportionate sum received; provided that if all or
any portion of such excess amount is thereafter recovered from such Lender, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but without interest.
Section 16.16. PATRIOT Act Notice. Each Agent, each Lender, the Custodian, the
Document Custodian and the Collateral Administrator hereby notifies the Borrower that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on
October 26, 2001)) (the “PATRIOT Act”), it is required to obtain, verify, record and update
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Person to identify the Borrower in accordance
with the PATRIOT Act. The Borrower shall provide to the extent commercially reasonable, such
information and take such actions as are reasonably requested by such Person in order to assist
such Person in maintaining compliance with the PATRIOT Act.
Section 16.17. Legal Holidays. In the event that the date of any Payment Date, date of
prepayment of Advances or the Final Maturity Date shall not be a Business Day, then
notwithstanding any other provision of this Agreement or any other Facility Document, payment
need not be made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of any such Payment Date, date of
prepayment or Final Maturity Date, as the case may be, and interest shall accrue on such payment
for the period from and after any such nominal date to but excluding such next succeeding
Business Day.
Section 16.19. Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Facility Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any Lender that is an Affected Financial Institution arising under any Facility
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
Lender 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
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Section 16.18. Non-Petition. The Collateral Manager and each Secured Party hereby
agrees not to institute against, or join, cooperate with or encourage any other Person in instituting
against, the Borrower any bankruptcy, reorganization, receivership, arrangement, insolvency,
moratorium or liquidation proceeding or other proceeding under federal or state bankruptcy or
similar Laws until at least one year and one day, or if longer the applicable preference period then
in effect plus one day, after the payment in full of all outstanding Obligations and the termination
of all Commitments; provided that nothing in this Section 13.17 shall preclude, or be deemed to
prevent, any Secured Party (a) from taking any action prior to the expiration of the aforementioned
one year and one day period, or, if longer, the applicable preference period then in effect, in (i)
any case or proceeding voluntarily filed or commenced by the Borrower or (ii) any involuntary
insolvency proceeding filed or commenced against the Borrower by a Person other than any such
Secured Party, or (b) from commencing against the Borrower or any properties of the Borrower
any legal action which is not a bankruptcy, reorganization, receivership, arrangement, insolvency,
moratorium or liquidation proceeding or other proceeding under federal or state bankruptcy or
similar laws. The provisions of this Section 16.18 shall survive the termination of this Agreement.
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 Facility Document; or
(c)
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.
(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
(b)
As used in this Section 16.20, the following terms have the following meanings:
“BHC Act Affiliate” of a party shall mean 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
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Section 16.20. Acknowledgement Regarding Any Supported QFCs. To the extent that the
Facility Documents provide support, through a guarantee or otherwise, for any 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 the
Facility Documents and any Supported QFC may in fact be stated to be governed by the laws of
the State of New York and/or of the United States or any other state of the United States):
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 the Facility Documents 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 the
Facility Documents 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 Defaulting Lender shall in no event affect the rights of any Covered Party
with respect to a Supported QFC or any QFC Credit Support.
(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” shall have 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).
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first above written.
MSCC FUNDING I, LLC, as Borrower
By:
Name:
Title:
MAIN STREET CAPITAL CORPORATION, as Collateral
Manager
By:
Name:
Title:
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780461396 22723957
TRUIST BANK, as Administrative Agent
By:
Name:
Title:
TRUIST BANK, as Lender and Swingline Lender
By:
Name:
Title:
APPLE BANK, as Lender
By:
Name:
Title:
ZIONS BANCORPORATION N.A. DBA AMEGY BANK, as
Lender
By:
Name:
Title:
FIRST FINANCIAL BANK, as Lender
By:
Name:
Title:
WESTERN ALLIANCE BANK, as Lender
By:
Name:
Title:
EVERBANK, N.A., as Lender
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780461396 22723957
By:
Name:
Title:
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CITIBANK, N.A., as Collateral Agent
By:
Name:
Title:
CITIBANK, N.A., as Custodian
By:
Name:
Title:
VIRTUS GROUP, LP, as Collateral Administrator
By: Rocket Partners Holdings, LLC, its General
Partner
By:
Name:
Title:
CITIBANK, N.A., as Document Custodian
By:
Name:
Title:
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MAIN - April 2025 - SPV Amendment - EX. 99.1 Exhibit 99.1
| NEWS RELEASE |
|---|
| Contacts:<br><br>Main Street Capital Corporation<br><br>Dwayne L. Hyzak, CEO, dhyzak@mainstcapital.com<br><br>Ryan R Nelson, CFO, rnelson@mainstcapital.com<br><br>713-350-6000<br><br>Dennard Lascar Investor Relations<br><br>Ken Dennard / ken@dennardlascar.com<br><br>Zach Vaughan / zvaughan@dennardlascar.com<br><br>713-529-6600 |
Main Street Announces Amendment of its SPV Credit Facility
Interest Rate Reduced
Final Maturity Date Extended to September 2030
HOUSTON – April 24, 2025 – Main Street Capital Corporation (NYSE: MAIN) (“Main Street”) is
pleased to announce that its wholly-owned subsidiary, MSCC Funding I, LLC (“MSCC Funding”),
recently amended its special purpose vehicle revolving credit facility (the “SPV Facility”). The
recently closed amendment decreases the interest rate during the revolving period to one-month term
Secured Overnight Financing Rate (“Term SOFR”) plus 1.95% (from the prior interest rate of Term
SOFR plus 2.35%) and during the first and second years after the revolving period to Term SOFR plus
2.075% and 2.20%, respectively (from the prior interest rate of Term SOFR plus 2.475% and 2.60%,
respectively). The amendment also extends both the revolving period, or reinvestment period, and the
final maturity date by one year through September 2028 and to September 2030, respectively. The
amendment also decreases the unused fee to 0.40% (from 0.50%) on the unused amount up to 50%
(from 35%) of the commitment amount.
ABOUT MAIN STREET CAPITAL CORPORATION
Main Street (www.mainstcapital.com) is a principal investment firm that primarily provides
customized long-term debt and equity capital solutions to lower middle market companies and debt
capital to private companies owned by or in the process of being acquired by a private equity fund.
Main Street’s portfolio investments are typically made to support management buyouts,
recapitalizations, growth financings, refinancings and acquisitions of companies that operate in diverse
industry sectors. Main Street seeks to partner with entrepreneurs, business owners and management
teams and generally provides customized “one-stop” debt and equity financing alternatives within its
lower middle market investment strategy. Main Street seeks to partner with private equity fund
sponsors and primarily invests in secured debt investments in its private loan investment strategy.
Main Street’s lower middle market portfolio companies generally have annual revenues between $10
million and $150 million. Main Street’s private loan portfolio companies generally have annual
revenues between $25 million and $500 million.
Main Street, through its wholly-owned portfolio company MSC Adviser I, LLC (“MSC Adviser”),
also maintains an asset management business through which it manages investments for external
parties. MSC Adviser is registered as an investment adviser under the Investment Advisers Act of
1940, as amended.
FORWARD-LOOKING STATEMENTS
This press release contains certain forward-looking statements, including but not limited to the
availability of future financing capacity under its credit facilities, which are based upon Main Street
management’s current expectations and are inherently uncertain. Any such statements other than
statements of historical fact are likely to be affected by other unknowable future events and conditions,
including elements of the future that are or are not under Main Street’s control, and that Main Street
may or may not have considered; accordingly, such statements cannot be guarantees or assurances of
any aspect of future performance. Actual performance, events and results could vary materially from
these estimates and projections of the future as a result of a number of factors, including those
described from time to time in Main Street’s filings with the Securities and Exchange Commission.
Such statements speak only as of the time when made and are based on information available to Main
Street as of the date hereof and are qualified in their entirety by this cautionary statement. Main Street
assumes no obligation to revise or update any such statement now or in the future.